
Glass _t^ 
Book_j3_zVz 



e^p/ 



7. 



REPORT 



ACCOMPANYING DOCUMENTS 



VIRGINIA COMMISSIONERS 



APPOINTED TO ASCERTAIN THE 



BOUNDARY LINE 



Maryland and Virginia. 




RICHMOND: 

K. F. WALKER, SUP't PUBLIC PRINTING. 

1873. 



^"1 87 






In Senate, January 30, 1873. 

Mr. Eoller, from the Committee on Federal Relations, reported the 
following resolution, which was adopted : 

Besolved, That the Superintendent of Public Printing be instructed 
to have printed for the use of the General Assembly the statements 
made by the commissioners on the part of the Si;ate of Virginia and 
Maryland, in relation to the boundary line between said States, and 
also the report of the Virginia commissioners to the Governor 



REPORT. 



RICHMOND, Virginia, December 18th, 1872. 

To his Excellency, Gilbert C. Walker, 

Governor of tlie State of Virginia : 

Sir: 

I am instructed by my colleagues on the boundary commis- 
sion between the states of Virginia and Maryland, to report to you 
their proceedings since their last report, and to submit a statement 
on the part of each state, setting forth their respective claims of 
boundary. 

Maryland claims to the South bank of the Potomac, to Smith's 
point ; thence to Cedar straits, on the E. shore of the Chesapeake 
bay ; thence up the Pocomoke river to where what is called the Calvert 
and Scarbrough line crosses that river ; thence by said line to the 
Atlantic ocean. 

Virginia claims to the Nortb bank of the Potomac, to the extreme 
southern angle of Point Lookout ; thence by a right line to the ex- 
tremest part of the westermost angle of Watkins point, at the 
North headland of Little Annamessex river ; and thence by the Cal- 
vert and Scarbrough line to the Atlantic ocean, according to the line 
run in 1668 by the commissioners on the part of the two colonies, 
fully and finally confirmed by both Lord Baltimore and the royal 
province of Virginia. 

This difierence of boundary embraces eminent domain of great 
value, and the commissioners of the two states are earnestly endea- 
voring to agree upon a fair and liberal compromise. 

The joint commission met first at Annapolis, whence they adjourned, 
after examining certain records there, to meet at Crisfield, on the line 
of the Eastern shore, near the initial and closing point of the entire 
line between the two states. There, and at Smith's island, on the 



Tan-ier sound, they took the depositions of near thirty witnesses 
touchino- the marks and traditions of the line ; and they found a 
number°of marks on Smiths island, besides the natural head land 
forming the extremest part of the westermost angle of Watkms 
point, west of the Pocomoke river. 

After full conference and comparison of views, it was agreed that 
the commissioners of the two states should prepare statements of 
their respective claims and interchange them simaltaaeously, at their 
next joint meeting appointed to be in Baltimore, on the first day 

of October last. 

On assembling, the commissioners of Maryland read and famished 
a copy of the statement on the part of Maryland. The statement on 
the part of Virginia was not completed, but was in part read and in 

part stated orally. • i +i 

After a full hearing of extreme claims and pretentious on botH 
parts, various propositions of compromise and concession were recip- 
rocally made and considered, and finally all questions were adjourned 
to another meeting at the city of Richmond, in November last, by 
which time the statement on the part of Virginia could be completed. 
The gentlemen of the Maryland commission came on, and, uniortu- 
nately Mr Wise of the commissioners of Virginia, was suddenly 
called W and Mr. Watts was too ill to attend ; no joint meeting was 
therefore'held, and all that could be done was to furnish the commis- 
sioners of Maryland with a copy of the statement on the part ot 
Virginia That has been duly forwarded to the Hon. I. D. Jones 
for himself and colleagues ; and when they have sufficiently considered 
it, they will inform the . commissioners of Virginia when and where 
another joint meeting can be held. 

Thus the settlement is not yet concluded ; but a reasonable hope is 
confidently entertained that a satisfactory adjustment can and will be 

agreed on. r ^ a 

The accompanying papers discuss the whole ^^.^^7^^^ .^^J^^^^f^ 

fact fully, and will, it is thought, satisfactorially explain the difificultj 

and delay oi this work by its vast volume of history. 

Paper " A" is a statement of the commissioners on the part ot 

Marvland. It has no appendix of matter referred to. 

Paper " B" is the statement of the commissioners on the part ot 

Virginia. . . .1 <. 

Paper " C" is the appendix of paper " B," containing the most 

important matters referred to therein. 



Since the last report, two other manuscript volumes of the McDonald 
papers have been found, in addition to the three volumes found by the 
commissioners in the state library. There are now five of those 
volumes, several of them mutilated. The two lately recovered were 
handed in to the librarian of the state by Mr. Thomas Wynne, of 
this city, but they were received by the commissioners not in time to 
be closely examined for tiie uses of their work, though it is thought 
that they contain but little pertaining to the subject of boundaries 
between Maryland and Virginia. The more important evidences of 
Virginia's claims were to be found in the papers brought by Mr. 
DeJarnette from England, and they have been found richly worth all 
the cost and expenditure of sending for them. 

The Maryland archives respecting the Calvtrt and Scarbrough line 
of 1668, from Watkins point to the ocean, aided by these papers, 
make the claim of Virginia certain and conclusive. 

The cost of sending to England consumed a large part of the ap- 
propriations, and that added to the pay of the commissioners, has 
entirely exhausted them. The state is now in arrears to the com- 
missioners, as the auditor's accounts will show. 

If the boundaries are settled by the joint commission, the line will 
have to be run and permanently marked by a detail of surveyors from 
the office of the U. States coast survey. 

The cost of that, and the pay and arrears of pay of the commis- 
sioners, will, it is estimated, require an additional appropriation of 
ten thousand dollars, ($10,000.) 

If not adjusted by the commissioners, most important interests of 
the state require that she. shall resort to the Supreme court of the 
United States. That will require at least the same amount of ap- 
propriation of $10,000 to begin with, and ten times that amount may 
well be expended to save the state's interests in the riparian rights of 
the Potomac river; in about 50 square miles of land on Smiths 
island, and south of the Little Annamessex river, and north of the 
Pocomoke sound, on the main ; and in about 300 square miles of 
oyster beds, in the Chesapeake ba}^ and in Tangier and Pocomoke 
sounds. 

During the past year, thn town of Crisfield, exactly on the Calvert 
and Scarbrough line, at its terminus on the Little Annamessex, 
shucked and shipped to the markets, mainly in the West, one million 
of gallons of oysters, costing at the place where sold, an average of 



one dollar and eight cents per gallon, and bringing in the markets an 
average profit of 100 per cent. 

The place employs 250 vessels, 1,500 catchers, about the same 
number of openers and packers, has fifteen packing houses, and sells 
as many oysters in the shell as are sent to market opened. The trade 
of the mouth of the Little Annamessex in oysters is worth from three 
to four millions of dollars per annum. Maryland, at present, derives 
more than four-fifths of its profits and revenue. The stakes in this 
boundary question, therefore, are worth, on the whole line in dispute, 
too many millions of dollars to be lightly relinquished or to be 
neglected. 

Your commissioners have, therefore, taken full time for thorough 
and elaborate investigation, and their task has been immense, in re- 
ferences to history, to manuscripts, to state papers, to the laws of 
two states, to maps, reports, records, old patents and archives, until 
they have developed and embodied a mass of valuable history, besides 
what pertains to the question of boundary, and much of its important 
matter is new. 

They therefore urge that your excellency will lay this report and 
accompanying papers before the general assembly, with the request of 
a liberal appropriation to meet either contingency of amicable adjust- 
ment or resort to the Supreme court of the United States. 

They retain the papers of the commission in their charge, with their 
journal, until they shall make a final report. 

All which is respectfully submitted. 

I have the honor to be, 

Your Excellency's most obedient servant, 

HENRY A. WISE. 
By order of the Commissioners on the part of Virginia. 



A. 

On the Part of the Commissioners of Maryland. 



The Boundary Line hetioeen Maryland and Virginia. 

Some question has been made as to the accuracy of the commonly- 
received charter of Maryland," and its English version, as contained in 
Bacon's Laws, published in 1765; but a careful examination and com- 
parison of the translation of the charter, printed in London in 1635, 
in the " Relation of Maryland," and as printed in Bacon's Laws in 
1765, and as contained in the " Transcript of the original instrument 
in Latin, with the abbreviations extended, copied from the Patent Roll 
and Charles I., jind translated by Thomas Edlyne Tomlins, Esq., 
attorney at law and record solicitor, at London, in 1871," for the Vir- 
ginia commissioners, show that there is no substantial difference among 
them in the description of the territory granted to Lord Baltimore by 
the charter of the 20th day of June, 1632, or in any other particular. 
In Mr. Tomlins' translation, the bounds of the territory are described 
thus : 

" Of a grant to him and his heirs, to Cecil, Baron of Baltimore, the 
King, &c., to all whom, &c. — Grreeting : 

'' Know ye, therefore, That we, regarding with royal favor the pious 
and noble purpose and intention of the aforesaid Baron of Baltimore, 
of our special grace, certain knowledge, and mere motion, have given, 
granted, and confirmed, and by this our present charter for us, our 
heirs and successors, do give, grant and confirm to the aforesaid Cecil, 
now Baron of Baltimore, and his heirs and assigns, all that part of 
the Peninsula or Chersonese lying in the parts of America between 
the ocean on the east, and the bay of phesapeake, on the west^ divided 



8 

from the remnant of the same by a right line drawn from the promon- 
tory or headland called Watkins point, beside the bay aforesaid, 
situate near the river of Wighco, on the west, as far as to the great 
ocean on the eastern coast, and between that boundary, on the south, 
as far as to that part of the estuary of the Dele ware, on the north, 
which lieth under the 40th degree of north latitude from the equator, 
where New England is bounded; and all that tract of land within the 
boundaries under- written — that is to say, going from the said estuary, 
called Delaware bay, in a right line, in the degree aforesaid, to the true 
meridian of the first source of the river of Potomac; then tending 
downwards towards the south to the further bank of the said river, 
and following it to where it faces the western and southern coast as 
far as to a certain place called Cinquack, situate near the mouth of 
the same river, where it discharges itself into the forenamed bay of 
Chesapeake, and from thence, by the shortest line, as far as to the 
aforesaid promontory, or place called Watkins point, so as all the 
tract of land divided by the line aforesaid, between the great ocean 
and Watkins point, as far as to the promontory, called Cape Charles, 
and singular their appendages to us, our heirs and successors, are en- 
tirely remaining forever excepted. And also all islands and isles with- 
in the limits aforesaid. We do also grant and do confirm to the same 
Baron of Baltimore, his heirs and assigns all and singular islands and 
isles on the eastern shore of the aforesaid country, towards the east, 
risen or .to arise in the sea, within ten sea leagues from the same shore, 
with all and singular ports, roads of shipping, estuaries, Sowings of 
water and arms of the sea, to the country or islands aforesaid belong- 
ing." 

Where was Watkins Point ? 

The first inquiry is, where was the point, called Watkins point, 
described as the beginning bounder, from which was to be drawn the 
right line across the peninsula to the ocean ? It is scarcely necessary 
to remark, after the many proofs we have seen and heard of the great 
changes in the "points," shores and islands of the Chesapeake bay 
and its tributaries, which have taken place especially in that vicinity, 
and within the memory of living witnesses, and which are still going 
on, that the place called Watkins point, in the charter to Lord 
Baltimore, has long since been washed away, or does not now exist as 
it then was. 



Let us examine thea the description of it as contained in the 
charter. Mr. Tomlins translates it, "promontory," "headland," or 
^' place," the same words which are used in Bacon's translation, while 
in the " Relation of Maryland," it is called " promontory," or 
" cape of land," ami " place." " Besides the bay aforesaid, situate 
near the river of Wighco," (Tomlins ;) " situate upon the bay afore- 
said, near the river Wighco," (Bacon ;) "situate in the aforesaid bay 
near the river of Wighco," (Relation of Maryland.) 

In Ogilby's America, published in 1671, " the bounds" of his 
" New Description of Maryland," in words nearly identical with those 
in Ihe "Relation of Maryland," are contained, between quotation 
marks, ending with the last boundary line, thus : "' Unto the afore- 
said promontory or place, called Watkins point, which lies in thirt}'- 
seven degrees and 50 minutes, or thereabouts, of northern latitude." 
It is probable that the places mentioned in the charter upon the 
Chesapeake bay, were known with reasonable certainty by intelligent 
Virginians residing in the Virginia colony at that time. The Chesa- 
peake bay, and many of its principal rivers, had been explored by 
Capt, John Smith, with fourteen others, in a barge of two or three 
tons burthen, in June, July and xiugust of 1608, the year after the 
first settlement at Jamestown. Smith had made a map of his ex- 
plorations, and had written a general summary of the results of his 
two expeditions, and some of those who accompanied him had written 
a more detailed and particular account of his exploration of the bays 
and rivers and islands, all of which Smith had published in London 
first in 1612, and afterwards in 1629. Lord Baltimore had passed the 
winter of 1628-9 in his province of Avalon, Newfoundland, and had 
become so dissatisfied with it as a residence, that he wrote to the 
king, August 19th, 1629, requesting a grant of land in Virginia, 
with a view to settle there. Without waiting for a reply, he went to 
Virginia about the first of October, 1629, and visited Jamestown. 
Beverly, in his history of Virginia, says : " The people there looked 
upon him with an evil eye, on account of his religion, for which alone 
he sought this retreat ; and by their ill treatment discouraged him 
from settling in that country." On that account, Beverly states, he 
made a journey northward, up the Chesapeake bay, with a view of 
making a new plantation of his own. And finding that the settle- 
ment at that time reached no further than the south side of the 
Potomack river, "' his lordship got a grant of the proprietary of 
Maryland." 

2 



10 

Beverly made a mistake in the date of this visit, ia stating it to 
have been in 1628, and in stating the name of the Lord Baltimore 
who made this visit and exploration as Cecelius, instead of Gi-eorge 
Calvert ; hut the fact of his personal explorations of the Chesapeake 
bay in 1629, enabled him, with the aid of Smith's Hist, and Map, 
more accurately to describe the bounds of the territory, for which he 
afterwards obtained a grant. He had been one of the Virginia com- 
panies whose charters had been declared forfeited by the judgment of 
the Court of King's Bench in 1624, upon a writ of quo warranto, and 
also a member of the provisional government formed by the king, 
after the province was thus restored to him, and doubtless was well 
informed about the affairs of the colony. About 1622, the Virginia 
colony numbered 1,275 whites, 76 of whom lived on the Eastern shore. 
The settlement on the Eastern shore of Virginia was made in 1620, 
" neere Accomack," an Indian town, located on Smith's map near the 
Cherriton, now Cherrystone, river. One plantation was for the use 
and profit of the company, another for the governor, and one for the 
secretary of the province, " in lieu of salaries," &c., which planta- 
tions were to go to their successors in office. Pory was secretary of 
the colony, and made two excursions in 1620 to the Eastern shore, an 
account of which was published in Purcha's Pilgrims, in 1625, and is 
mentioned in Smith's history, vol. ii., p. 40. Pory mentions passing 
Russles Isles and Onancock, on his way from the Eastern shore to 
Patuxent, which he visited on the invitation of and in company with 
the kino; of a large tribe on that river. 

Rogroan, vol. 1, p. 149, (note,) says, " the original account of 
Pory's travels probably contained a description of Russle's isles, 
Onaucock and Patuxent, which Smith thought ' needless to be writ 
againe' in this part of his work ; but it does not appear that Onan- 
cock was ever before mentioned by him therein." But it is mentioned 
as well known to the Virginians at that time. It appears that 
during the years of 1627, 1628 and 1629, the governor of Virginia 
gave authority to Wm. Clayborne, the secretary of state, to explore 
the Chesapeake bay, and this, says Chalmer's Annals, (ch. ix., note 
12,) was in pursuance of special instructions from Charles the First 
to the governor of Virginia to procure exact information of the rivers 
of the country. Clayborne and his associates were extensively en- 
gaged in trading with the Indians of the Chesapeake and its tributti- 
ries, and in May, 1631, obtained a license from King Charles I., au- 
thorizing him, his associates and company, from time to time, to 



11 

trade for coro. furs, &c., with ships, boats, men aod merchandise, in 
all seas, coasts, harbors, lands or territories in or near about those 
parts of America, for which there is not already a patent granted, to 
others for sole trade, with command to Governor Henry, of Virginia, 
to permit such trade; giving to Clayborne full power to direct and 
gove^-n, correct and punish such of our subjects as may be under his 
command, in his voyages and discoveries." It was under this license 
of 1631, to trade, or the former license to explore the Chesapeake and 
trade, &c., that Clayborne and company assumed to make the settle- 
ments upon Kent and Palmer's islands, in the Chesapeake bay, which 
were afterwards made the basis of objections to Lord Baltimore's 
charter. 

Lord Baltimore's religious faith precluded his taking the oath of 
supremacy, whereupon he was notified that he could not settle in that 
colony. After exploring the Chesapeake bay with a view to obtain a 
grant of land, north of the Virginia settlements, for a plantation of 
his own, he left his lady in Virginia and hastened to England. On 
his arrival there he found a letter from the king, dated 22nd Novem- 
ber, 1629, advising him to desist from his designs to settle in America. 
Neill, 47. 

Gov. John Pott, Samuel Matthews, Roger Smyth and Wm. Clay- 
borne, in a letter to the Privy Council of November 13, 1629, gave 
an account of Lord Baltimore's arrival in Virginia, about the begin- 
ning of the preceding October, and his refusal to take the oath of 
supremacy, and prayed, that " As they have been made happy in the 
freedom of their religion as heretofore, no Papists may be suffered to 
settle among them." Neill, 47. Probably Lord Baltimore was not 
aware of this persistent opposition to his settling in Virginia, for in 
December, 1629, he wrote a letter to King Charles asking a letter 
from the privy council to the governor of Virginia in behalf of his 
lady, still there, to aid her in returning to England ; and also prays 
for a grant of a portion of land in Virginia, the king having given 
him leave to choose a part. (Neills' Terra M^rie, 4.) 

Doabtless Lord Baltimore's purpose was well known in Virginia, 
for, during the spring of 1830, '•'Francis Vf'est, who had been gover- 
nor, Wm. Clayborne, secretary, and Wm. Tucker, one of the council, 
Wv-re in London, resisting the planting of a new colony within the 
limits of the settled parts of Virginia." (Neitt 50.) Under these cir- 
cumstances there is every reason to believe the boundaries of the pro- 
vince were well considered by the kipg before the charter passed under 



12 

the great seal. It had been prepared by Lord Baltimore during his 
leisure hours; had been submitted to and approved by the king, but 
before it had j:)assed through all the formalities George Calvert, the 
first Lord Baltimore, died on the 13th April, 1632. Three months 
after that date the patent was regularly issued to Cecil, the second 
Lord Baltimore. Those who had resisted the granting of the patent 
made immediate efforts to obstruct Lord Baltimore in his preparations 
to occupy his province. A remonstrance was presented to the king in 
May 1633, " that some grants have been lately obtained of a great 
portion of lands, and territories of the colony there, being the places 
of their traffic, and so near to their habitations, as will give a general 
disheartening to the planters," &c. 

The king, on the 12th May, 1633, referred the petition to the privy 
council. On the 4th June, 1633, the council appointed the 28th of 
that month for the hearing, giving notice to all the parties interested 
to attend. The hearing was had accordingly, and an order was passed 
that Lord Baltimore and the planters of Virginia (meaning of course 
their agents and attorneys in England) should meet together, between 
then and the third of July, 1633, and endeavor to accommodate their 
controversy in a friendly manner. Also that the propositions made by 
either party should be set down in writing, with their several answers 
and reasons, to be presented to the board on that day. 

This was likewise accordingly done; and at a meeting of the coun- 
cil, on third July, 1633, they decided "to leave Lord Baltimore to his 
patent and the other parties to the course of law, according to their de- 
sire." Chalmer's Annals, ch. 9, note 18. 

Lord Baltimore then proceeded to occupy his patent, and the set- 
tlement was made at St. Mary's, on the 27th March, 1634. Clay- 
borne continued his opposition to Lord Baltimore's authority over 
Kent island, fitted out an armed expedition in 1635, under command 
of Lieutenant Warren, to seize and capture any of tlie pinnaces or 
other vessels belonging to the government of St. Mary's. The gov- 
ernment of St. Mary's also armed two pinnaces, under the command 
of an officer, and the hostile forces met, says Bozman, ia April or 
May, 1635, in either the Pocomoke or Wighcomoco rivers, on the east- 
ern shore of the province, where a battle commenced " which resulted 
in the death of Lieutenant Warren and two of his men, and of one 
of the Maryland men." Bozraan's Hist, of Md. i. vol., 35. 

Clayborne had before this fled to Virginia, and Governor Harvey de- 
clii^e4 to surrender him to the demand of the governor of the Mary- 



13 

land province, but sent him and the witnesses to England. Here 
Clayborne and his partners in trade (two merchants in London) pre- 
sented a petition to the king, about 26th February, 1637, setting forth 
that, by "virtue of a commission under his majesty's hand divers 
years past, they discovered and ])lanted the isle of Kent, in the bay 
of Chesapeake, which island Ihey had bouglit of the kings of that 
country; that great hopes for trade of beavers and other commodities 
were like to ensue by the discoveries; and that Lord Bjiltimore, ob- 
serving this, had obtained a patent," &c. They then gave their ver- 
sion of the " battle," and of Lord Baltimore's seizure of the isle of 
Kent and another island at the head of the bay, which they purchased 
from the Indians, and upon which they had settled a plantation and 
factory, &c. They prayed for a grant of confirmation " for the quiet 
enjoyment of their said plantations," and to refer their "wrongs and 
injuries to such person as his majesty should think fit." The petition 
was referred to the lord's commissioner of j^lantations, who, after " a 
tedious controversy, and after hearing all parties, made their adjudica- 
tion on the 4th April, 1638." A copy of their report is recorded in 
the Maryland Records of Council Proceedings, from 1636 to 1657, p. 
8. A copy is also published in Hazard's Collections, vol. i, p. 130, 
puri)orting to be from "Votes of Assembly of Pennsylvania," and by 
Chalmer's Annals, ch. 9, note 25, taken, as he states, from " Mary- 
land Papers, vol. i, bundle C, in the plantation office, England." A 
copy is also published in Bozman's Maryland, vol. 2, p. 584, note xi. 
The substance of their adjudication was "that the lands in question 
absolutely belonged to Lord Baltimore, find that no plantation or trade 
with the Indians ought to be allowed within the limits of his patent 
without his permission; that with regard to the violences complained 
of, no cause for any relief appeared, but that both parties should be 
left to the ordinary course of justice." Clayborne, assisted by Sir 
Wm. Alexander, the king's secretary for Scotland, and Clayborne's 
patron in the business, " partly by misrepres(;ntation," as Chalmers 
observes, procured a letter from the king, dated 14th July, 1638, to 
Lord Baltimore, commanding him to permit Clayborne and his part- 
ners to be safe in their persons and goods there till that course be de- 
cided. Lord Baltimore, on receiving the order, as Chalmers proceeds 
to state, said that he "would wait on the king and give him perfect 
satisfaction." Subsequent events justify us in supposing that when 
the king came to be fully informed of all the circumstances relative to 
Clayborne's claims, and Lord Baltimore's rights, the adjudication ot 



14 

the lord's commissioners was finally ratified by his majesty. Bozman, 
vol. 2, p. 72. " In virtue of this decision of the lord's commissioners, 
and, most probably, in pursuance of some special order from his ma- 
jesty to that purpose, the governor of Virginia, Sir John Harvey, is- 
sued his proclamation, bearing date the 4th of October, 1638." Boz- 
man's Maryland, vol. ii, p. 72. This proclamation (copied from the 
said "Council Proceedings from 1636 to 1657, p. 319," and published 
in Bozmau's. History of Maryland, vol. ii, p. 586,) is in the follow- 
ing words, to-wit : 

" By the Governor and Captain General of Virginia, with the advice 
and consent of the Council of State. 

"A Proclamation. 

"Whereas, the king's most excellent majesty was pleased by his 
letters patent to grant unto the right honorable, the Lord Baltimore, 
a territory or tract of land therein nominated, and now known by the 
name of the province of Maryland, with divers franchises and immu- 
nities thereunto belonging, as in and by the said letters patent more 
at large appeareth; notwithstanding which said royal grant and pub- 
lication thereof in this colony, divers persons, ill-affected to the gov- 
ernment established by his majesty both here and in the said province, 
have, by pretence of a former commission, factiously combined to 
disturb the said Lord Baltimore in the possession of his said territory, 
as also to infringe the privilege of trade, in express terras solely granted 
to the said Lord Baltimore within the said province; and after many 
violent and disorderly courses the said pretenders have so far proceeded 
as to petition his majesty that part of said province now known by the 
name of the island of Kent & Palmer's island, with the trades thereof, 
might be confirmed to them, the consideration of which, their said 
petition, his majesty was pleased to refer to the most reverend and 
right honorable the archbishop of Canterbury, the lord keeper of the 
lord privy seal, and any others, the commissioners for plantations, who 
should be near at hand, and whom their lordships were pleased to 
call : whereupon, their lordships meeting, after a full hearing of both 
sides, the said pretenders' commissions being likewise read, their lord- 
ships did declare the right and title to the isle of Kent and other 
places in question, to be absolutely belonging to Lord Baltimore (and 
that no plantation or trade with the Indian^ pught to be within the 



15 

precinct of his patent without the license from him), as in and by the 
order of their lordships, more at large appeareth : 

" These are, therefore, for the future preventing of further mischiefs 
and injuries, which may arise from ignorant mistakes of presura()tions 
and pretences, as formerly, in his majesty's name, to prohibit all per- 
sons, being or inhabiting, or which shall hereafter be and inhabit within 
the government of this colony, by themselves or others, either directly 
or indirectly, from the date of these presents, to use, exercise or enter- 
tain any trade or commerce, for any kind of commodity whatsoever, 
with the Indians or savages inhabiting within the said province of 
Maryland, viz : northward from the river Wiconowe, commonly called 
by the liame of Onancock, on the eastern side of the grand bay of 
Chesapeake, and north wurd from the river Chitiquack, called Great 
Wicomico, on the western side of the said bay; and for the better 
regularity of all trades within the said colon)'-, it is further hereby 
commanded that no persons shall resort unto the habitations of the 
aforesaid Indians without license first obtained for their so doins from 
the Lord Baltimore, or his substitute, upon forfeiture of the goods 
and vessels, or the full value of them, which shall be lawfully evicted 
to be traded or employed contrary to jjremises, with such further pun- 
ishment by imprisonment of the parties or party offending against the 
true intent and meaning of the said proclamation, as shall be thought 
fit by the government and council. 

"Given at James City the 4th of October, Anno Begin Regis 
Caroli decimo quarto, Anno Douiini, 1638. God save the king. 

" Vera co[)ia. 

"RICHARD KEMP, Secretary." 

The above proclamation was doubtless well known to every intelli- 
gent inhabitant of the Virginia colony at that day. The outlines of 
the Chesapeake bay and the rivers and islands as laid down on Smith's 
Map, had been made during his exploring expeditions in 1608, or from 
minutes and memoranda then "made. His history and map were pub- 
lished in 1612 and in 1629, and being the only map then extant con- 
taining the names of places mentioned in Lo?-d Baltimore's charter, 
was, doubtless, the guide of the king and Lord Baltimore in describing 
the boundaries of the province granted by the charter. Smith's Map 
was made under such circumstances, and on so small a scale, that no- 



16 

thing more than a general idea of the places described could be reason- 
ably expected. 

Bozman (whose history of Maryland was written about 1811) says: 
"It is wonderfully correct, considering the time and circumstances 
under which it was made; yet it is certain that by comparing it with 
the latest and best maps of the Chesapeake, particularly Grriffith's 
Map of Maryland, we may perceive material errors, especially in those 
parts of it contiguous and adjacent to Watkins point." 

A pamphlet had been published in London by Lord Baltimore, in 
1635, entitled, "A Relation of Maryland; together with a Map of 
the Country, The Conditions of Plantations, and His Majesty's Char- 
ter to Lord Baltimore, translated into English." This pamphlet was 
evidently published to show the boundaries and location of the Mary- 
land Province, and to induce immigrants tivsettle ir^ it. The boun- 
dary line between Virginia and Maryland is dotted along the Southern 
shore of the Potomac river to its mouth, and down the bay shore to 
the place called Cingnack, and thence across the bay by a line (a 
little to the North of East) to the Southermost point of land washed 
by the waters of Chesapeake bay on the West and South, and by the 
waters of the Wighco, now Pocomoke river, on the East, and called 
Watkins point ; and thence by an East line to the ocean. This East 
line is about on the 38th degree of North latitude, as laid down on 
this map ; and on Smith's Map the 38th degree is placed still further 
South. These errors were common in the maps of that day. Lord 
Hardwicke remarked, in the case of Penn vs. Lord Baltimore, that 
" It is a fact that latitudes were then fixed much lower than they 
have been since found to be by more accurate observations. 

But whatsoever errors were made in fixing the degrees of latitude 
on maps, the position of land marks and rivers was known and 
certain. 

When, therefore, the proclamation forbids trade with the Indians 
or savages within the said province of Maryland, to wit, northward 
from the river Onancock, on the eastern side of the bay of Chesapeake, 
and of the Great Wighcomico, on the western side of the said bay, 
it indicates, at least, that those rivers were nearest to the boundaries 
called for in Lord Baltimore's charter, and for the purposes of the 
proclamation, were to be regarded as the Southern limits of Maryland. 
It may be fairly considered evidence that Watkins point, at that 
time extended so far South as to be West, or nearly West, of Onan- 



17 

cock river, so that an East line from it to the ocean would pass along 
or near that river. Neither of those rivers were located or named in 
either Smith's or Lord Baltimore's map. Cinquack was called for^ in 
the charter, as the point from which the last line was to be run, to 
the beginning bounder at Watkins point ; and the tradition is so 
fully proved that tlie main land originally extended in one unbroken 
point to Wat^s island, the southern end of which at that time was 
probably so nearly west of Onaucock river as to confirm the implica- 
tion that Watkins point was at the southern end of what has since 
become known as Watts island. 

The tradition ig that Fox island and Watts island were formed 
by the action of the waters of Chesapeake bay, breaking through the 
neck of land into Pocomoke bay. It was fully proved before the joint 
commissioners that great changes have taken place in those islands by 
the washing away which has occurred within the memory of many 
living witnesses, and that very many large stumps of trees are in the 
waters and marshes adjacent to them. This fact led Lieutenant 
Michler, in his report to the joint boundary commissioners, in 1858, 
to remark that "stumps of trees are said to exist in the marshes and 
in the waters between the main land and Watts island, showing that 
it probably was once one continuous neck of land as far south as that 
island." 

Bozman makes this remark upon the proclamation, vol. ii, p. 73, 
note : " From these expressions in this proclamation it may be infer- 
red that the thirty-eight degree of latitude was then deemed to cross 
the Eastern shore of Virginia as low dowa in Accomac county as 
Onaucock creek, or, at least, that the Southern limits of Maryland ex- 
tended that far South. As to the restrictions of the Virginians in 
their trade on the western side of the bay, within the Cinquack called 
Great Wicocomico river, it is not impossible that in consequence of 
the expression in the charter of Maryland as to the South bounds 
thereof (' following the Potomac oh the West and South unto a certain 
place called Cingnack, situate near the mouth of the said river Po- 
tomac'), the Southern limits of that province, at least, as to the ju- 
risdiction over the bay of Chesapeake, were deemed to extend to the 
mouth of the Cingnack. It is probable that most of the trade with 
the Indians was at that time carried on by water in different parts of 
the bay and its tributary streams." The proclamation was deemed to 
be of such importance that it was recorded among the proceedings of 
the governor and council of Maryland. So also was the adjudication 



18 

of the privy councils aforesaid dated 4th April, 1638. After the 
death of Charles I., Clayborne again threatened to attempt to take 
possession of Kent island by force, and an act of the Maryland as- 
sembly was passed in 1650 in reference to the said threats, in the pre- 
amble to which the order of the privy council of the 4th April, 1638, 
and the " proclamation made and published in Virginia the 4th of 
October, 1638, by the authority of the then governor there, with the 
advice and consent of the council of state," are specially recited. The 
ijext reference to the boundary of Maryland is found in a letter of 
instructions, dated 26th August, 1651, from Lord Baltimore to his 
governor, Wm. Stone. In this letter, Lord Baltimore refers to cer- 
tain false rumors he had understood to be rife in the province " of a 
dissolution or resignation here of our patent and right to that pro- 
vince ; " and that he had understood " that Sir William Berkeley had 
lately taken upon him to grant a commission to one Edmond 
Scarborough, of Accomac, Virginia, to seat Palmers island within 
our said province, and to trade with the Indians, &c," which was so 
strange a usurpation that he could not easily believe it to be true ; 
but in case the said Scarborough, or any other, should presume to seat 
or trade in or through any part of his province without his authority, 
he required the governor to prevent him or them from so doing, and 
to seize upon his or their person boats and goods, &c. And after nu- 
merous other instructions upon a variety of subjects, he adds : "And 
for the better publication and remembrance of the bounds between 
Virginia and Maryland, and prevention of any controversies which 
may otherwise hereafter happen between the inhabitants of Virginia 
and those of our said province about the same, we require you, our 
said lieutenant, to encourage some English, as soon us you can, to 
take up such lands as shall be due unto them in our said province, 
near to the bounds of our said province, according to the maps there- 
of, which we sent thither about two years since, and to pass grants in 
our name, under our great seal, to STich as shall desire the same, of so 
much land in those parts of our said province as shall be due unto 
them as aforesaid ; especially on or near the bounds of our said pro- 
vince ; on that tract of land which is commonly called the Eastern 
shore, lying between the bay of Chesapeake and the sea." Unfor- 
tunately those maps cannot be found. They were sent over (and 
probably made) some sixteen years after that of 1635, before men- 
tioned. In another letter of instructions from Lord Baltimore to his 
governor and council, dated 23d October, 1656, among other items is 



19 

the following, to-wit : "That they do take special care that no en- 
croachments be made b}' any upon any part of his lordship's said 
province ; for the better prevention whereof, his lordship requires his 
said lieutenant and council to cause the hounds thereof to he kept in 
memory and notoriously knoicn ; especially the hounds hefween Mary- 
land and Virginia on that part of the country knoion there hy the 
name of the Eastern shore, to which his lordship would have them 
peruse one of the maps of Maryland, which his lordship formerly 
sent thither, whereby the said bounds are described; and his lord- 
ship hath also for their direction therein, sent herewith, a copy of a 
proclamation published heretofore by the then governor and council 
of Virginia for prohibiting any of Virginia to trade with the Indians 
in Mar)dand without his Lordship's lycense, which proclamation bore 
date 4th October, 1638, and therein are described the bounds between 
Maryland and Virginia ; the said copye having bin transcribed out of 
another copie thereof, which his Lordship hath attested by Mr, Kich- 
ard Kemp, deceased, who was secretary of Virginia when the said 
proclamation was made. Given under his lordship's seal at arms, 
23d October, 1655. 

'•' C. BALTIMORE." 

Maryland Council Book, H. H. 1656 to 1668, p. 4. 

It is thus shown, with certaintj-, that as late as 1656, Lord Balti- 
more, in an official paper, addressed to his governor and council in 
Maryland, charges them to jjuard, with special care, against encroach- 
ments upon any part of his province, and directs them to the procla- 
mation of the 4th of October, 1638, as a public document, published 
by the government of Virginia, wherein are described the bounds be- 
tween the two provinces. 

Charles I. had described in the charter the line of division of the 
Eastern shore peninsula, specially reserving all that part of it South of 
the divisional line for himself, his heirs and successors. The governor 
and council who issued the proclamation were appointed by him, and 
were not likely to do any act to the prejudice of his rights. The coun- 
cil were especially known to be hostile to Lord Baltimore. For eleven 
years, during the king's life, and in the fulness of his power, the pro- 
clamation remained unquestioned. 

Affer his death, and after the parliament took in hand the govern- 
ment of England, Clayborne and Benuet, influential Virginians, the 
special enemies of Lord Baltimore, together with Captain Curtis, 



20 

claiming to act under a commissioa from the council of state for the 
commonwealth of England, took possession of the government, both 
of Virginia and of Maryland, and had control over the latter from 
29th March, 1652, for several succeeding years. If there had been 
error in describing the limits of Lord Baltimore's charter in the pro- 
clamation of 1638, these intelligent Virginians must have been aware 
of it; and especially Clayborne, who was not only a " person of qual- 
ity and trust," as described by King Charles I., in the commission to 
him as secretary of Virginia, dated 4th March, 1625; but was un- 
questionably a man of intellectual ability, and residing in the colony, 
with fullest opportunities of perfect knowledge of all the affairs of the 

colony. 

It is not likely with the power in his hands, with his known hostil- 
ity to Lord Baltimore and his charter, that he would let slip an op- 
portunity, to correct an error, if such was known or supposed to exist, 
in the proclamation, as to the bounds of the Maryland province, 
whilst their authority over Maryland existed. Special care was taken 
to have Clayborne's own claim to Kent and Palmers islands revived 
and recognized. His friend and colleague in governing Maryland, 
Kichard Bennet, was one of the negotiators of a treaty with the Sus- 
quehanna Indians, on 5th July, 1652. The treaty recognized the 
rights of the English nation " to all the land north of the Patuxent 
and Choptank rivers, excepting the isle of Kent and Palmers island, 
which belongs to Captain Clayborne." Again, in November, 1652, 
when the government of Maryland, then acting under the authority 
of Clayborne and Bennet, directed an armed expedition to be fitted 
out against the Eastern shore Indians, the Southern bounds of Mary- 
land are especially referred to in the order of appointing Captain Fuller 
to the command of the expedition. His commission was " to march 
against all or any Indians inhabiting upon the Eastern shore of the bay 
of Chesapeake, to the northward of the southerly hound of this pro- 
vince, on that side of the hay, heing over against Wicohomico point; 
and from thence in a direct line eastward to the main ocean." 

Wicokomico point, here mentioned, was doubtless the point pro- 
jecting into the bay from the north shore of the Great Wicokomico 
river, on the Western shore near " the place called Cinquack"— the 
words "over against" meaning "opposite to." This point, although 
not named, is distinctly laid down on the map in the " Relation of 
Maryland," and the line dotted; thence to Watkin's point; thence to 
the ocean, is nearly au East line. We think there can be no doubt 



21 

that the Pocomoke river was originally called by the Indians Wigh- 
cocomico, which Smith abbreviated on his map to Wighco. Smith 
and his associates explored the river, and had intercourse with the na- 
tives residing upon it. Smith's general summary of his voyages up 
the bay was evidently written some time after they had been completed. 
Whereas the two accounts written by his associates are more in the 
form of a diary, at least following a consecutive form, giving the 
events in the ortier of their occurrence, as if written during the voy- 
age. Dr. Russel, Todkill and Mumford call the river Wighcocomico 
in three places on one page. (Smith's History, vol. i, page 175.) 

After two days more, spent among uninhabited isles, after leaving 
the river Wighcocomico, going north, " they came to the river Cuska- 
ramark," admitted to be the Nanticoke. Smith, (reversing the actual 
order of his expedition, as if he had gone up the Western shore and 
returned by the Eastern shore,) after describing the bay, describes the 
rivers of the Western 'shore, as far as he explored them, to the head of 
the bay. He then mentions, on the East side of the bay, the river 
Tockwough, (the present Sassafras,) the Rappahannock, (probably now 
Fishing bay, in Dorchester county,) ''' near to vt^hich," he says, " is the 
river Kuscaramaock." "After that is the river Wighcocomico." "The 
people of those rivers are of little stature, and of another language 
from the rest, and very rude. But they on the river Acoahanock and 
they of the Accomack doth equal any of the territories of Powhattan, 
and speak his language, who over all those doth rule as king." Dr. 
Russell and the others, state that " this river, (the Cuscarawack,) but 
only at the entrance, is very narrow, and the people of small stature 
as those of Wighcocomoco;" evidently meaning the Wighcocomoco 
which they had explored as high as the cross on the map, and of which 
they had given a particular account. 

There is not the slightest intimation in Smith's History or Map 
that he ever saw or heard of any other Wigh'jocomoco river on the 
Eastern shore of the bay. Smith, in describing the rivers of the West- 
ern shore, begins with the Powhattan, (the James river,) then de- 
scribes the Pawunkee and Tappahanock, and says "the fourth river is 
called the Potomake, six or seven miles in breadth." 

First on the south side, at the very entrance, is " Wighcocomico." 
(Smith's History, vol. i, p. 118.) Afterwards, on the 120 page, de- 
scribing the rivers on the East side of the bay, coming South, he says : 
"After that (the Kuscarawaok) is the river Tants Wighcocomico;" 
evidently meaning the Wighcocomico, described by Dr. Russell and 



22 

Co., and called by Smith Tants Wighcocomico to distinguish it from 
the other Wighcocomico on the Western shore " at the very entrace of 
the Patowmaock; " which latter Wighcocomico is not mentioned at all 
in the account written of Dr. Russell and Co. We cannot therefore 
see, if Smith's History had been carefully examined, how any ques- 
tion could have arisen about the identity of the river Wighco, men- 
tioned in the Lord Baltimore's charter, with the river since known as 
the Pocomoke. Some question, however, in relation to the bounds 
between Maryland and Virginia, (but what it was does not appear,) 
seems to have assumed importance during the time Bennet and Clay- 
borne ruled over Maryland. Cromwell was said to have written some 
letters to Bennet and Clayborne, in January, 1655, upon this subject. 
But all we know of their contents is the explanation of their purport, 
criven by Cromwell^ in a letter to the same persons, as commissioners 
of Maryland, dated 26th September, 1655. In this letter he says, 
'• our intention was only to prevent or forbid any force or violence to 
be offered by either of the plantations of Virginia or Maryland, from 
one to the other, upon the differences concerning their bounds — the 
said differences then being under the consideration of ourself and coun- 
cil here." " The differences," whatever they were, remained undeter- 
mined by Cromwell and his council at the time of his death. The 
persistent efforts of Clayborne and Bennet, during their reign over 
Maryland, having failed to induce parliament or Cromwell to interfere 
with Lord Baltimore's proprietary rights, the government of his pro- 
vince was finally restored to him in March, 1657-8. 

Up to this time no settlements upon the Eastern shore, within the 
limits of Maryland, below Choptank river, had been made under 
grants of land by Lord Baitimore, so far as we have been able to as- 
certain. 

The settlements on the eastern shore of Virginia had extended 
northward from the first plantations. A letter from Colonel Edmond 
Scarborough to the governor and secretary of Maryland, in relation to 
a war he was about to prosecute against, the Asssatege Indians, bears 
date, "From Onancock, 28th August, 1659;" and that place was 
probably then his residence. Early in the session of the Virginia as- 
sembly of 1660, they passed a stern law against the Quakers, forbid- 
ding their being brought into the colony; requiring all Quakers, on 
detection, to be imprisoned without bail, till they took an oath to 
leave the country, and gave security that they would never return, 
with other most stringent provisions. (I. Howigpn's History of Vir-r 



23 

ginia, 319.) This act doubtless enabled the governor of the Maryland 
province to comply witli Lord Baltimore's orders of 1651 and 1656, 
to people that part of his territory on the Eastern shore next adjoining 
to Virginia. 

A commission issued by Gov. Philip Calvert, dated on the 6th of 
November, 1661, to Col. Edmund Scarborough, Randall Revell and 
John Elzey, authorizing them, or any two of them, for the term of 
six months, to grant warrants for land upon the Eastern shore of this 
province, in any part below Chaptank river, upon the conditions 
therein described, recites that it was issued upon " the petitions of 
divers persons well affected to this province now, or late inhabitants 
of Northton county, otherwise called Accomack, in Virginia, who are 
desirous to transplant themselves and families into this province." 
Scarborough, Elzey and Revell were residents of the Eastern shore of 
Virginia, and were empowered to grant warrants for fifty acres of land 
for every person transplanted, on condition that before warrant granted 
each person should take the oath of fidelity to Lord Baltimore before 
two of the commissioners being in Maryland. Randall Revell and 
John Elzey themselves settled at Manoakin, and on the 2d of May, 

1662, Randell Revell reported to the governor that there were then 
'' seated 50 titheable persons at Manoakin and Annamesses," and de- 
sired that " course might be taken for the supply of the plantation or 
continuance of the commission to himself and the others." On the 
same day it was ordered, " that the commission for granting warrants 
for land, dated 6th November last, be renewed to Col. Edmund Scar- 
borough, Randall Revell and John Elzey, to continue until recalled." 
This commission seems to have been continued until 4th February, 

1663, on which day a commission, in similar terms, was issued by 
Governor Charles Calvert to John Elzey, Randall Revell and Steplren 
Horsey. Scarborough was thus left out of the commission, but that 
he had accepted the trust and acted under it appears from a reference 
to him in a document dated June 3d, 1664, issued by Governor Charles 
Calvert, appointing Philip Calvert to deliver a copy of it to Governor 
Berkley, of Virginia, &c. This document had special reference to the 
claim then recently set up by Virginia to the territory settled at Ma- 
noakin and Annamessex, and to Col. Scarborough's armed invasion of 
that part of Maryland iu October 1663. This document states that 
Col. Scarborough "did, about the tenth day of October last, in a hos- 
tile manner, enter many miles into this province, to the terror of the 
people at Manoakin and Annamessex, beating, abusing and imprison- 



24 

ing the people there hy him long before seated by virtue of a commis- 
sion from this govern7nent directed, and contrary to his certain hiowl- 
edge of the bounds of the said j^rovince." That most extraordinary 
claim seems to have originated with Col. Scarborough. The first no- 
tice of it to the Maryland authorities appears in a letter from Mr. 
John Elzey, dated "Manoakin, this — th March, 1662," (but actually 
1663 N. S.), to Mr. Serrell, secretary of Maryland. As this docu- 
ment shows the origin of the controversy as to the true location of 
Watkins' Point, and the action of the Maryland authorities upon the 
first notice of it, we copy the proceedings as they appear in the Mary- 
land records. Liber H. H., folio 170. 

H. H. 170. 

"At a Council held at St. John's, 8th April, 1663, was read a let- 
ter from Mr. John Elzey to Mr. Small, secretary: 

" Honorable Sirs : 

" By the last opportunity of conveyance, which 
was by John Anderson, we gave your honors account of what Col. 
Scarburgh writ to Mr. Revell as concerning their claim to this place, 
and have ever since expected some instructions from the hon'ble 
lieut. gen'l how we should answer him if he should come up. But 
as yet can hear none. Since the time of writing my business drew 
me down to Accomack, where Col. Scarborough arrested me at his 
majesty's suit, and made his demand of obedience and rights for land, 
the copie whereof I have enclosed, and the copie of my answer to it, 
without which I could not have done my business nor have returned 
home before I had been at Jamestown, where I do believe it would 
have been exacted more particularly. Col. Scarborough telling me that 
my answer was like to that of the oracle of Delphos. When he had 
my response, he told me that if he could he would be up with us be- 
fore Jamestown court, if not, presently after, and make the same 
demand of every particular person, and on denial would, according to 
his order, set the broad arrow on the house of him that should refuse 
to give a satisfactory answer, and promises great protection on sub- 
mission, 

"Now I beseech your honors that you will, with what speed you 
can, urge his lieut. to consider our condition; how we lie between 
Sylla and Charibdis, not knowing how to get out of this labyrinth. 



25 

I could not understand but tliat he doth intend to come up with a 
competent company to force us, who are not in a capacity to defend 
ourselves against the pagans, who doe grow very insolent, and tell us 
wo are lyars, and that our great men care not for us, because that 
none of them come to us. 

" I would gladly have waited on your honors, but cannot at present 
by reason of an extreme cold that hath seized on me. But because I 
would not have these miscarry, I have sent my friend, by whom I shall 
expect your answer, to the satisfaction of all the inhabitants, who do 
much desire to serve his lordship faithfully, and live quietly under his 
protection and government to enjoy what little goods they have in 
peace, and not have it macerated and torn from them because they 
are ignorant. Thus hoping you will think of us and provide for our 
safety that cannot help ourselves, I shall omit at present what further 
discourse I have heard until it shall please God that I shall see you 
and rest. 

Your honours' ever faithful and ready servant, 

JOHN ELZEY. 

Manrakin this — th. 

March 1G62. (N. S. 1663, mark the same distinction in following 
dates. 

I. D. JONES.) 

Col. Scarborough's Demand. 

" Mr. John Elzey : 

" This day as I am his majesty's treasurer and 
substitute, I do demand of 3'ou obedience and acknowledgment to his 
majestie's dues in poynt of rights for lands and government, which, 
though hitherto upon some reasonable pretence, you have declined. 
I have, upon better information, and doe by these presents, demand 
your immediate obedience to his sacred majesty in payment of right 
for land and gov'nt to which your answer and submission is required 
by me, his majesties officer, this 23rd of February, 1662. 

"E. S. 

" Upon some delays and scruples made by Mr. John Elzey, I de- 
mand right of land in and upon the place where he lyreth, and sub- 
4 



26 

mission to his majestie's government, being in a place now called 
Manrakin, formerly in Smith's Map, Wicomoco river. 

"E. S." 

Mr. Elzey's Ansioer. 

" Mr. Scarborough : 

"Honored Sir : Having perused your demand of 
obedience and acknowledgement to his majestie's dues in poynt of 
rio-hts for government, I can give no other response than this. That 
I shall decline, as long as I live, all authority that shall not be de- 
rived from him, his heirs, or lawful successors, and am, and shall 
always be ready, to yield obedience to them, that is or shall be the 
gov'nt by an authority granted from him, or any of his lawful suc- 
cessors, and will willingly pay all such rights and dues as shall be 
lawfully demanded of me, whether of right of land, or otherwise ; 
and soe shall I subscribe this 23rd of February, 1662. 

"J. E." 

Upon reading of this letter it is ordered : 

'• That a letter bee sent to Sir Wm. Berkley, governor of Virginia, 
from the governor and council, signifying unto him Col. Scarborough's 
demand of obedience and acknowledgement to his majestie in poynt 
of rights of land, from the people inhabiting at Manoakin and An- 
namessex, as well as submission to his majestie's government of Vir- 
ginia. And that on their part, they would appoynt a time, when we 
on our part, shall attend on them to determine that place which shall 
be accounted Watkins point, according to his lordship's patent for 

Maryland." 

The next historical document in the Md. Eecords, relating to this 
" difference" about " Watkins point," is the following, under date 
June 3rd, 1664 : 

"Charles Calvert, Esq., Lieut, and Chief Governor of the Province of 
Maryland, under the Eight Hon'ble Cecelius, Lord and Proprietary 
of the same : To all persons to whom these presents shall come, 
greeting : 

" Whereas, divers persons, illwillers to the good correspondence of 
long time held between the Gov'm'nt of Virginia and that of this 
province, have of late endeavored to raise differences between the said 
governments, touching the ancient and known bounds between them 



27 

on the Eastern shore ; and whereas the Honorable Sir Wm. Berkley, 
gov. of Virginia, did appoint Col. Edraond Scarborough, Mr. John 
Cattlett and Mr. Ricliard Lawrence, or any two of them, whereof the 
said Scarborough to be one, to give a meeting to the <leputies or sub- 
stitutes of this government, by the governor thereof to be appointed, 
(in case any dispute should arise where Watkins point was, that 
being the bound of this province,) to determine what should be rea- 
sonably proposed by the said Deputies. In pursuance wiiereof, the 
said Col. Scarborough, without the said Cattlett or Lawrence, or con- 
venient notice given to me, did, about the tenth day of October last, 
in a hostile manner, enter many miles into this province, to the terror 
of the people at Manrakin and Annamessick, beating, abusing and 
imprisoning the people there, by him long before seated by virtue of a 
commission from the government, and contrary to his certain know- 
ledge of the bounds of the said province. And whereupon, remon- 
strance of this undue proceeding to the Honorable Sir Wm. Berkle}'', 
by myself in person, he did not only disclaim any order from him to 
the said Scarborough alone, or before notice given and debate had, 
touching the point in difference, to proceed by force as he did, but 
was pleased further by his order of the 28th of March last, to order 
the said Scarborough, with one ^or both the surveyors, Cattlett or 
Lawrence aforesaid, Capt. Joseph Bridger, Capt. Robt. Elkson and 
Mr. Bulwer Mitford, to give a meeting to such commissioners, as 
should by me be appointed at Manrakin 10th May last, and in case of 
my refusal of that so just a proposal, to proceed according as in that 
commission they were ordered. Now know ye, that for as much as 
neither the said John Cattlett, nor Richard Lawrence, appeared at 
Manrakin at the time appointed, without one of which nothing could 
be legally by the rest done that did appear ; and to show how we are 
not to be tired out of our desires of fair correspondence with the 
hon'ble gov. and council of Virginia^ I have constituted, ordained, 
appointed and impowered Philip Calvert, Esq., deputy lieutenant and 
chancellor of this province, to repair to the Hon. Sir Wm. Berkley, 
gov. of Virginia, and the council there, and after delivering of a dupli- 
cate of these presents, and to treat and determine the said difference 
concerning Watkins point ; also to demand justice against the said 
Edraond Scarborough for entering into this jirovince, in a hostile 
manner, in October last, and by blows and im})risonment outraging 
the inhabitants of Manrakin and Annamessex, without commission, 
as also for attempting to mark a tree upon a point of land above 



28 

thirty miles to the Northward of Watkins point, in Maryland, with- 
out commission or order, and for publishing a proclamation at Man- 
rakin, on Monday, 16th May, contrary to the order dated 28th of 
March aforesaid, I having appointed commissioner the said Philip 
Calvert, and Jerome White, surveyor general, to meet at Manraken 
aforesaid, who did accordingly come at the time and place appointed, 
which, unless I had refused to do, they, the said commissioners, had 
no order to publish any command or proclamation whatsoever, had 
they been present, (according to the tenor of the same order,) as they 
were not. And further, to represent to Honorable Sir Wm. Berkley 
the undue proceedings of the assembly of Virginia, who undertake 
to take cognizance of things relating to this province and the people 
thereof. Whereas his majesty of happy memory by the charter, hath, 
by express words, exempted both the province and people thereof 
from the government of Virginia, and made both it and them de- 
pendent only of the crowue of England ; and to desire of him, the 
said Sir Wm. Berkley, to take care for the future that the assembly, 
meddling with things relating to us, and beyond their power, be no 
cause of future difference between us ; which we, in our assembly, on 
our part, shall industriously avoid. Whereof' I desire that the said 
Philip Calvert may be credited an^ believed, promising to ratify and 
confirm whatsoever shall be done by him, according to this my com- 
mission, as if it were done by myself. Given at St. Maries, under 
my hand, and the lesser seal of this province of Maryland, this 3rd 
day of June, 1664." 

We learn from this document the only connected account of the 
proceedings of the governor and council of the two colonies, subse- 
quent to that order of the 8th of April, 1663. It appears from this 
document, that in response to the representations made to Grov. 
Berkley, under the order of April 8th, 1663, he appointed Col. Scar- 
borough, Mr. Cattlett and Mr. Lawrence, or any two of them, whereof 
Col. Scarborough to be one, to give a meeting to the deputies or sub- 
stitutes of Maryland, in case any disputes should arise where Wat- 
kins' point was, that being the bounds of this province. That Scar- 
borough, without Cattlett or Lawrence, or notice to the governor of 
Maryland, invaded Maryland in a hostile manner about the 10th 
October, 1663. That remonstrance against " this undue proceeding" 
was made to Gov. Berkley by Gov. Calvert in i)erson. That Gov. 
Berkley not only disclaimed any order from him to Scarborough alone, 



29 

or before notice and debate had been touching the point in difference, 
but by order of 28th March, 1GG4, directed Scarborou<;]i, with one or 
both the surveyors, (Cattlett and Lawrence,) Capt. Bridger, and the 
others named, to give a meeting to the Maryhmd commissioners on 
]Oth May, 1664. That neither of the surveyors, Cattk^tt or Law- 
,rence, appeared at the time appointed, although Philip Calvert and 
■Jerome White, commissioners appointed by the governor of Mary- 
land, met at the appointed time at Manrakin ; but that Scarborough 
was there in May, 1664, and atb^npted to mark a tree upon a point 
of land above 30 miles North of Watkins point, and on 16th May, 
1664, published at Manrakin, a proclamation contrary to his orders. 
That by document of June 3rd, 1664, Philip Calvert was commis- 
sioned to repair to the governor and council of Virginia to deliver a 
duplicate of the paper, and " to treat and determine the said differ- 
ences concerning Watkins point ;" also to demand justice against 
the said Scarborough for invading this province with force of arms, 
outrao'ins the inhabitants of Mauoakin and Annamessick, and for his 
other acts complained of. And further to represent to Gov. Berkley, 
of Virginia, the undue proceedings of the assembly of Virginia, who 
had undertaken to take cognizance of things relating to this province, 
contrary to the express words of Lord Baltimore's charter." 

The undue proceedings of the Virginia assembly here referred to, 
were doubtless the act of the 2nd September, 1663, entitled, " An 
Act concerning the bounds of this Colony on the Eastern shore." 

By this act the assembly "concluded the same place of Watkins 
Point to be the North side of Wicocomico river on the Eastern shore, 
near unto, and on the South side of the straight "Limbo," opposite 
Patuxent, which place, according to Capt. John Smith, in the year 
1608, was so named. The point here described has always been 
known and called Nanticoke point. It is highly probable that the 
assembly, as well as the " five able .^elected surveyors and two bur- 
gesses," on whose report, the assembly based their action, was mainly, 
if not entirely, influenced by the opinion and representations of Col. 
Scarborough. He had been for many years a resident of the Eastern 
shoie, and member of the house of burgesses, and was surveyor 
general of Virginia. He had commanded the Viiginian forces on the 
Eastern shore in the wars against the Indians, and, doubtless, had 
traversed the country, and was better acquainted with the territory 
than any other person in the two coloaies. But he had evidently read 
Smith's History and Map to little purpose, and had jumped to his 



30 

conclusions with recklessv audacity. This is shown by his demand 
upon Mr. Elzey, on the ground that the place of his residence, at 
Manrakin, was formerly in Smith's Map called Wicocoraico river. 

We think we have already shown that a careful examination and 
comparison of Smith's History and Map, together, will leave no doubt 
that the only Wighco (or Wighcocomico river as it is called in the 
history) on the Eastern shore, mentioned by Smith, or of which he had 
any knowledge, is the present Pocomoke. 

On the map, Smith has located the Indian king's house "Wighco- 
comico," on or near the South bank of the Wighco, and he has loca- 
ted no river between the Wigho and Cucarawack, (the Nantikoke,) 
although Little and Great Annamessick, Mannakin and Wicomico 
rivers intervened between them. In the same way he passed by, with- 
out discovering, the rivers Chester, Wye, St. Michaels, G-reat and Lit- 
tle Choptank, and the Black Water and Tansquaking rivers, between 
the Tockmough (the Sassafras) and the Nanticoke. 

The error of the Virginia assembly, apart from its total want of ju- 
risdiction over the question, is still more remarkable. We presume it 
originated in misapprehending a line on 183d page of i. vol. Smith's 
History, viz : " Watkins, Eeads and Munfords poynts, are on each 
side of Limbo." But this gives no certain idea of the location of any 
one of them. A glance at Smith's Map, however, shows that Mum- 
fords point was North of Limbo, and must have been at the Southern 
end of Hoopers island, (though not known to Smith to be an island,) 
and that Watkins point was 30 miles South of Limbo, and was the North 
point at the mouth of the Wighco flumen, as located on Smith's Map, 
while Reads point was further up, and on the same side ot the Wigh- 
cocomoco river, probably at the point now known as Williams point, 
below Shelltown, The claims founded on these errors were subse- 
quently abandoned. Meantime the Maryland authorities continued to 
claim to Watkins point, as described in the charter, in every docu- 
ment which related to the bou-nds of the province on the Eastern 
shore. Thus, in a commission from Governor Calvert, dated 26th 
March, 1664, to Wm. Coleburn to be lieutenant under Capt. Thorne 
of the foot company to be raised by him, "between Choptank river 
and a line drawn East into the mayne ocean from Watkins point, 
being the North point of the hay into which the river Wighco, form- 
erly called Wighcocomico, afterwards Pocomohe, and noiv Wighco- 
comico again, doth fall exclusively." Again, in a commission, dated 
26th May, 1664, to Stephen Horsey, Capt. Wm. Thorne, and Wm. 



31 

Bozman, to grant lands upon the Eastern shore of this province, in 
any place between Choptauk river and a line drawn East into the main 
ocean from Watkins point, " being the North j^oint of the bay into 
lohich the river Wighco (formerly called Wighcocomico, afterwards 
Pocomoke, and now Wighcocomoco again) doth fall exclusively." 
Liber H. H., folio 197, 198. 

Again, in a commission dated September 2d, 1665, to Capt. Wm. 
Thorne, to command as captain all the forces '• on the Eastern shore of 
the province, from Wicocomoco that joynes upon Maniy" (meaning 
Monie bay, into which it flows), " to that part of Pocomoke on the 
said Eastern shore that is or shall be inhabited within the province." 
A distinction here is clearly drawn between the river now called Wi- 
conoico (then Wicocomico), emptying into Monie bay, and the Poco- 
moke or Wighcocomoco of Smith, which fell into the Chesapeake bay 
at Watkins point. And again in the letters patent of Cecelius, 
Lord Baltimore, erecting the county of Somerset, dated 22d August, 
1666, he describes the bounds thus : " All that tract of land within 
our province of Maryland, bounded on the South with a line drawn 
from Watkins jioint, being the North point of the bay, into which 
the river Wighco (formerly Wighcocomico and afterwards Pocomoke 
and now AVighcocomico again) doth fall exclusively to the ocean on 
the East, Nanticoke river on the North, and the sound of the Chesa- 
peake bay on the West. H. H., folio 268. Recorded in full in the re- 
cords of Somerset county in Liber B. 

In the division of the county into hundreds, January, 1G67, An- 
nemessex hundred is thus described : " Beginning at Watkins point, 
running to the mouth of Merumisco creek up the Westermost side of 
the said creek to Merumsco dams, and from Watkins point to the 
North point of Annemessex river," &c. 

The particularity in the description of the location of Watkins 
2)oint in all the official documents of Maryland, in which it was named, 
after February, 1663, was doubtless caused by the attempt of Col. 
Scarborough at that time to create a doubt as to its true location. 
This was also the reason for calling the Pocomoke " Wighcocomoco 
again." 

That this was the true original location, and that Watkins point 
originally extended so far South as to be west of Onancock river, and 
that the proclamation of 4tli October, 1638, was recognized by the 
people of both colonies as correctly describing the bounds of Mary- 
land down to 1663, we think, may be fairly inferred from a passage in 



32 

Col. Scarborough's account of his military expedition to Annamessex 
and Manrakin in October of that year. It was addressed to the gov- 
ernor and council of Virginia. Describing his interview with the set- 
tlers at Manrakin, Col. Scarborough says : 

" Some of them also discoursed of the lord lieut. of Maryland's 
claim to Manrakin and all other places to Anancock, to which it was 
answered that, lohilst the erroneous proclamation was uncontrolledj 
that declares Anancock to he Maryland's Southern hounds, it might 
he so received, hut since occasion made the government of Virginia 
not only reverse that proclamation, hut also hy this present act of as- 
semhly, ye certain hounds of Lord Baltimore's patent was declared, 
and if the lieutenant had aught to say, he was referred by the act to 
persons and place. Therefore they need not trouble themselves there- 
in, for the question appertained to higher powers, and above private 
mens' controverting, at which they were well satisfied, and desired 
protection of their persons and estates from any pretenders under the 
said lord, which, being assured them, they departed well satisfied." 
It would appear from Coi. Scarborough's account that he deemed it 
nothing short of rebellion in Lord Baltimore's officers, and the people 
of Annamessick, to question the authority of an act of the " grand 
assembly" of Virginia "not only to reverse that proclamation," but 
also to declare " the certain bounds of Lord Baltimore's patent." 

The two depositions made on the 19th July, 1664, in the court of 
Northton, as to the location of Pocomoke river and Watkins point, 
a copy of which was submitted to us by the Virginia commissioners, 
have received respectful attention. That of Capt. Wm. Jones states 
that thirty-five or thirty-six years before that date he often sailed a 
trading with the Indians in the Chesapeake bay, and well knew the 
river of Pocomoke, " which lyeth to the Southward of a little point de- 
scribed in Capt. Smith's Map without a name, and is so far Southward 
as a man can see from the place described in Capt. Smith's Map for 
Watkins point, and that the said river Pocomoke was then so called, 
and no such name as the river Wighco, either at that time or in the 
memory of man before, was applied to the river Pocomoke, and that 
ever since the said river has been and is called by the name of Poco- 
moke river." 

The other is the deposition of Edmund Scarborough, and the same 
Capt. "Will. Jones" and six others, who state that they "have of 
long time heard of and known the river Pocomoke, and that the said 
river hath been so called time out of mind, both by the report of the 



33 

Indians and knowledge of the subscribers, and to this day is so called, 
being a river on the Eastern shore of Chesapeake bay, in Virginia, lying 
to the Southward of a small spiral point on the south side of Anna- 
messick, and that point is to the Southward of the place described in 
Capt. Smith's Map 'for Watkins point,' so far as a man can see in a 
clear day, and that the said river of Pocomoke, and so situate as afore- 
said, is so called to this day." 

We understand the first deposition to state, in substance, that the 
deponent knew the Pocomoke river about 1627 or 1G28; that it (the 
river) is so far southward of a little point on Capt. Smith's Map with- 
out a name, as a man can see from the place described for Watkins 
point in Smith's Map, and that no such name as the Wighco, either 
then or in the memory of man before, was applied to the river Poko- 
moke. Capt. Jones, of course, could only testify to what he had heard 
or known. His knowledge began some twenty years after Capt, 
Smith's exploration; and against Capt. Jones' statement that the river 
never was called Wighco in the memory of man, are the history and 
map of Capt. Smith, published first in 1612 and again in 1629, call- 
ing that river "Wighco flu " (fluraen), although Capt. Jones and the 
other deponents had never heard it so called, but only had heard it 
called Pocomoke in their day. 

The second deposition, as written, does not seem reconcilable with 
the first. The first describes the location of the Pocomoke as so far 
South of a small point without a name in Smith's Map as a man can 
see from Watkins point. In other words, that the small point was 
so far North of the river Pocomoke as a man could see from Watkins 
point. The second deposition states that the river Pocomoke lies to 
the Southward of a small spiral point on the South side of Annames- 
sick, and that point is to the southward of the place described in 
Smith's Map for Watkins point. 

If both depositions refer to the same point "without a name" in 
Smith's Map, and that point was on the South side of Annamessick 
river, it certainly must have been North of Watkins point, as located 
on Smith's Map. ^ 

We think the depositions utterly fail to rebut the evidence herein 
adduced as to the identity of the Wighco and Pocomoke, and the true 
location of Watkins point. And we conclude, with Bozman, that 
"Watkins point must have been the Southern promontory of Somer- 
set county, on the bay, and what may be termed the exterior cape of 

Pocomoke bay." Bozman's Maryland, 132. 
5 



34 

And we are further of opinion that that Southern promontory was 
subsequently to the charter broken by the action of the water into the 
islands since called Foxs islands and Watts islands; and that "the 
most Southern promontory, or exterior cape of Pocomoke bay/' since 
called Watts island, was formerly Watkins jtoint, described .in Lord 
" Baltimore's charter. 

Where the point of land at the Southern end of the promontory 
actually extended at the date of the charter, two hundred and thirty 
years ago, can only now be ascertained with probable certainty. From 
the shape of the shoal South of Watts island, as shown by the United 
States coast survey, the extent of the washing away may be inferred; 
but we submit that the Virginia proclamation of 1638 furnishes, by 
implication, the most certain evidence of its former true location. An 
East line to the ocean from that point was Maryland's true Southern 
boundary on the Eastern shore. 

We proceed now to consider 



" The Oalvert-Scarborough line." 

We have found no other reference in the Maryland records to the 
disputed Southern boundary on the Eastern shore, after Governor 
Charles Calvert's letter or commission to Philip Calvert of the 3d of 
June, 1664, except what has already been stated. 

The next entry on the Maryland records relating to this subject is 
entitled : 



^^A list of lands surveyed and entered in the office of Virginia, and 
patented, that now fall in Maryland." 

Acres. 
Eoberfc Hinston, ] 500 

John Williams, | 400 

James Henderson, [ These have their patents. 
Thomas Davis, \ 

John Davis, J 

Acres. 

Pte. of Edmond Scarborough, - - 3,000 Patented. 

Capt. Bowman and Mr. Littleton, - 3,000 Past the office. 

Lt. Col. Waters and Mr. Kobins, - 4,000 Past the office. 

Thos. Burnell; - - - 550 Past the office. 



35 



Edward Smaller, 

Daniel Selby, 

John Pike, 

Robinson's children, } 
Thomas Richard, f 

John Paramore, 

Robert Johnson, 

Stephen Barnes, 

William Brittingham, 

Thomas Smith, 

Henry Bishop, 

Thomas Selby, 

Alexander Williams, - 

Robt. Richardson, 

Edward Smith, 

Richard Smith, 

Frances Benston's, ^ 
formerly > 

John Wallop's ) 
Edmond Scarborough, 



To produce. 



500 


Patented. 


600 


Patented. 


400 


Patented. 


1,050 


Past the office. 


1,500 


Patented. 


600 


Patented. 


600 


Patented. 


700 


Past the office, 


400 


Past. 


2,300 


Past. 


1,250 


Past. 


600 


Past. 


2,000 


Past. 


700 


Past. 


200 


Past. 



3,000 



" Whereas the lands belonging to the persons above mentioned are 
found, since the lines are laid out on the Eastern shore, in Somerset 
county, to be within this province of Marj'-land, I do hereby promise 
to ratify and confirm, by virtue of his lordship's instructions, to me 
directed, every of the said lands, by patent or grant, under the great 
seal of this province, to each respective person, when demanded within 
seven years' time, allowed each person for the making good their 
rights for every of the said lands so by them first surveyed on Virgi- 
nia part and now to be holden by his lordship's grant, within this pro- 
vince, at 50 acres, for every right of land, so by them to be made good 
according to his lordship's conditions of plantations. 

"Given under my hand this 11th day of June, 1668. 

"CHARLES CALVERT." 



From extracts taken from the books of Virginia lands patents in 
possession of the Virginia boundary commissioners at the joint meet- 
ing at Crisfield, those lands appear to have been patented mostly in 
1664, 1^65 and 1666. These extract? enable us to supply the number 



36 

of acres left blank in the " list/' viz. : James Henderson^ 400 acres ; 
Thos. Davis, 400 ; John Davis, 700 — all patented April, 1666. John 
Wallop, 400 acres on Pocomoke river, and 3,050 acres at Gingoteague, 
10th June, 1664 ; which, added to the above number of acres in the 
" list," make nearly 33,000 acres taken up by Colonel Scarborough 
and his friends vpithin the limits of Maryland, according to the lines 
of 1668 — pending the controversy as to the true location of Wat- 
kins point. It will be found on examining the Virginia records that 
all these lands were situated between the southeast bank of the Po- 
comoke river and the ocean, in what is now Worcester co-unty, Mary- 
land. 

The following is a copy of the two agreements between Calvert and 
Scarborough of June 25th, 1668, as contained in the Maryland coun- 
cil book, 1669 to 1673, viz. : 

"Articles of agreement between Philip Calvert, Esq., chancellor of 
Maryland, deputed by the hocorable the governor of the said pro- 
vince, to treat and couclue upon the bounds of the said province, and 
Colonel Edmond Scarborough, his majesty, surveyor-general of Vir- 
ginia, authorized and commanded to lay out the bounds of Vir- 
ginia." 

I. Imprimis. It is agreed that all persons who have surveyed or 
patented and seated land on the seaboard side in the right of Virginia 
and now fallen within the divisional line, shall enjoy their said lands, 
they taking a patent from the lord proprietary of Maryland, and 
within seven years entering rights in the said province, and paying 
the half fees to the surveyor-general and full fees to the secretary and 
chancellor. 

II. Item. All such as have already patented any lands in right of 
Virginia in any other place within the line aforesaid, which is not also 
patented in Maryland, shall have the privilege in the foregoing articles 
upon such terms as in the said article is expressed. 

III. Item. All such who have patented and seated lands in right 
of Virginia, which do fall within the line aforesaid, and are patented 
likewise in Maryland, but not seated in the same right, shall enjoy the 
same, unless it can be proved they have seated said lands in defiance 
and despite of the said government after warning given, provided they 
take patents, enter rights, and pay/ees as in the first articles is 
a "-reed. 

IV. Item. If any land shall chance to be patented only in right 
of Virgiiiia. for which there is also a patent in Maryland, the patent 



37 

la Maryland shall carry the land. In witness whereof the said Philip 
Calvert and Edniond Scarbnron<;h have hereunto set their hands, the 
2oth day of June, 1668. 

(Signed) PHILIP CALVERT. 

EDMOND SCARBOROUGH. 

''Whereas his royal miijestie's conimissiou to the surveyor gene- 
ral of Virginia commands setting out the bounds of Virginia, with a 
reference to his majestie's hon'ble governor and council of Virginia, 
from time to time to give advice and order for directing the said sur- 
veyor general to do his duty appertaining to his office. In order 
thereunto his majesty's hon'ble governor and council have by letter 
moved the hon'ble, the Lord Baltimore's lieut. gen'l of Maryland, 
to appoint some fitting person to meet upon the place called Watkins 
point, with the surveyor general of Virginia, and thence to run the 
divisional line to the ocean, sea, &c. 

"The Hon'ble Philip Calvert, Esq., Chancellor of Maryland, being 
fully empowered by the hon. lieut. general of Maryland, and Ed- 
mund Scarborough, his majesty's surveyor general of Virginia, after 
a full and perfect view taken of the point of land made by the North 
side of Pocomoke bay and the South side of Annamessex bay, have 
and do conclude the same to be Watkins point, from which said 
point, so called, we have run an East line agreeable with the extremest 
part of the Westermost angle of said Watkins point over Pocomoke 
river to the laud near Rob't Holston's, and there have marked certain 
trees, wiiich are so continued by an East line running over Swarse- 
cutt's creek into the marsh of the seaside, with apparent marks and 
boundaries, which by our mutual agreement, according to the quali- 
fications aforesaid, are to be received as the bounds of Virginia and 
Maryland on the Eastern shore of Chesapeake bay. 

" In confirmation of which concurrence haee set our hand.«? and seals, 
this 25th day of June, 166S. 

(Signed) PHILIP CALVERT. [Seal] 

EDMUND SCARBOROUGH. [Seal.]" 

This is the only record of the transactions found in the Maryland 
archives. No journal of proceedings, no map or plat, no notes or 
certificate of survey, no mention of the names of the surveyors em- 
ployed in running the line, caq be found in our records. 



38 

Sixty years had elapsed since Capt. Smith and his crew named 
Watkins point, and thirty-six years since Charles I. had adopted 
that point as the spot from which the divisional line on the Eastern 
shore between Virginia and Maryland should be run to the ocean. 

A controversy had for several years existed as to the true location 
of this point. The surveyor general of Virginia and the chancellor 
of Maryland were empowered to meet upon the place and thence to 
run an East line to the ocean. They concluded that "the point of 
land made by the North side of Pocomoke bay and the South side of 
Annamessick bay was Watkins point." If Lieut. Michler was cor- 
rect in 1858 in assuming that " the mouth of the big- Annamessick 
river" " may once have given rise to the name Annamessick bay," 
mentioned in the Calvert and Scarborough agreement, and our con- 
clusion is con-ect that in 1668 the neck of land since broken up into 
Foxs and Watts islands extended unbroken to a point West or nearly 
West of Onancock river, then " the place called Watkins point " 
must have extended nearly twenty miles from North to South. Mich- 
ler would hardly have come to such conclusion but that the prolonga- 
tion Westward of the Calvert-Scarborough line from Pocomoke river 
to Tangier sound reached the sound after crossing little Annemessex 
river and North of the mouth of that river. He would scarcely have 
supposed that a point made by the North side of the Pocomoke bay 
would have extended beyond the mouth of the next river to the mouth 
of Pocomoke, especially as he, by a mistake, supposes the neck of 
land known as ''little Annamessex" to extend to the big Annames- 
sex river. It is well known that "little Annamessex neck" extends 
only from the Southeast shore of little Annamessex river to Cedar 
straits, and along the North shore of Pocomoke bay to East creek, 
and that the neck of land between little and big Annamessex is known 
as "Annamessex neck." If Watkins point was formed by Poco- 
moke bay on the South and East, and Tangier sound on the West, no 
geographical definition of a "promontory" would carry its Northern 
limits beyond the mouth of little Annamessick river. The words 
"promontory," "headland," "place," and "point," which are all 
used in the charter to indicate the spot or point of departure of the 
divisional line to the ocean, are commonly understood to describe a 
tract of land extending out into a bay or river beyond the line of the 
shore and becoming narrow at the end, which is therefore usually 
called "the point," and is always understood to mean " the extremest 
point" of the "angle," where the word "point'' is used to indicate 



39 

boundary. Thus, when the bounds of St. Mary's county were par- 
ticularly prescribed by the act of 1G95, ch. 13, confirmed and made 
perpetual by ch. 92 of 1704, it was declared " that St. Mary's county 
t^hall begin at Point Lookout and extend up Potomac river," &c., who 
would suj)pose that by "Point Lookout" in these acts was meant 
"■ the point of land made by the North side of" Potomac river and the 
" South side" of Patuxent river ? — a tract of land which includes 
seven or eight other distinct points. So also in the letters patent of 
1666 erecting Somerset county " bounded on the South within a line 
drawn east from Watkins point, being the North point of the bay," 
&c., and in describing the bounds of Somerset and erecting Worces- 
ter county by the act of 1742, ch. 19, "beginning at Watkins point, 
and thence running up Pocomoke bay," &c. It would seem impossi- 
ble to doubt that in all these descriptions the end of the point where 
it was washed by the water into which it extended was meant as the 
point of departure. But the Calvert-Scarborough agreement con- 
cluded otherwise. 

" After a full and perfect vieio taken of the point of land made by 
the North side of Pocomoke bay and South side of Annamessex bay, 
have and do conclude the same to be Watkins point." It is not 
stated that any other evidence, traditionary, or otherwise, had aided 
their vieiu or conclusion. A point of land of such extent from North 
to South must have some limits from East to West. These are not 
expressly given, but evidently must have been, Tangier sound on the 
West and Pocomoke river on the east ; a distance of about 15 miles 
apart. 

Their commission, " to meet upon the place called Watkins point," 
of course empowered them to determine what and where was the 
" place." This they did, as their report certifies. Their next duty 
was " thence to run the divisional line to the ocean, sea, &c." This 
also they certify they did, to wat, '•^from loliicli said point, so called," 
(that is from the point of land made by the North side of Pocomoke 
bay and South side of Annamessex bay,) " we run an East line 
agreeable with the extremest part of the westermost angle of the said 
Watkins point, over Pocomoke river, to the land near Robert Hol- 
ston's. and there have ^narked certain trees, which are so continued 
by an East line running over Swansecute's creek, into the marsh of 
the sea side, with apparent marks and boundaries, which, by our 
mutual agreement, according to the qualifications aforesaid, are to be 



40 

received as the bounds of Virginia and Maryland on the Eastern 
shore of Chesapeake bay." 

We think there is internal evidence that this agreement was drawn 
up by Col. Scarborough. We suppose Chancellor Calvert vms in- 
structed to agree to the best attainable line. We will give the rea- 
sons for this opinion hereafter. It is manifest that the attempt of 
Col. Scarborough and the Virginians to establish the location of 
Watkins point, at the Mauokin and Wicomico rivers, had utterly 
failed and been abandoned. It has been shown that the Virginia 
grants, between the Pocomoke river and the ocean, had extended far 
North of Watkins point, as claimed by Lord Baltimore. It has not 
been, and we confidently assert that it cannot be shown, that Virginia 
ever granted a foot of land North or West of the Pocomoke bay and 
river, and East of Tangier sound, except Foxs and Watts islands, 
which were granted long after the Calvert and Scarborough line was 
run. Col. Scarborough's invasion and " undue proceedings" at An- 
namessex and Manokiu in October, 1663, were utterly repudiated and 
disclaimed by the governor and council of Virginia ; and from that 
time to this every foot of land North of Cedar straits and Pocomoke 
bay and river, and East of Tangier sound, has been claimed and 
held under Maryland grants and governed by Maryland laws, as part 
of Somersett county. 

When Col. Scarborough made his expedition to Annamessex, in 
October, 1663, he states that he found Stephen Horsey settled upon 
lands granted by, and holding a commission as justice of peace from 
Lord Baltimore, and streneously, in the presence of the Colonel and 
his forty armed horsemen, he refused to recognise the authority of the 
Virginia government. It is evident that the line, if ever run at all, 
had been run across this very land of Horsey's, as if intended as a 
divisional line, had left a part of it in Virginia. This is shown by 
the prolongation Westward by Michler in 1858, crossing this identical 
land then owned and occupied by descendants of Stephen Horsey, the 
original patentee. The prolonged line crossed other lands in the same 
predicament, in its entire course from the right bank of the Pocomoke 
river to Tangier sound. Other lands also South of that line, and 
between it and Pocomoke bay and river, had been granted by Mary- 
land before 1668, and certainly if Virginia had intended to claim 
jurisdiction over the territory South of the line, and North of Poco- 
moke bay, similar and reciprocal provisions to obtain grants from 
Virginia, to confirm the title of the settlers, would have been inclu- 



41 

ded in the articles of agreement. But the articles of agreement 
relate only to the Virginia grants lying to the North of the divisional 
line between the Pocomoke river and the ocean. The land owners 
under Virginia titles North of that line had been ascertained by run- 
nine the line to the ocean. A list of them had been made and sub- 
mitted to Governor Calvert, and his written promise, under instruc- 
tions from Lord Baltimore, to confirm their title by grants from his 
lordship, had been obtained on the 11th day of June, 1668, fourteen 
days before the articles of agreement for quieting possession weie 
signed by Calvert and Scarborough. The articles consist of four 
items. Is^. Lands on the seaboard surveyed or patented and seated 
in riffht of Virginia, and now fallen within the divisional line to 
Maryland; ^nd. Lands patented by Virginia in any other place, within 
the said line, and not also patented in Maryland; 'ird. Lands patented 
and seated in right of Virginia within the said line, and patented 
likewise in Maryland, but not seated under said patents, unless the 
lands have been seated in defiance of the Maryland government, after 
warning given. All these were to enjoy their lands, upon taking a 
patent from the proprietary of Maryland. Mh. Land patented only 
in right of Virginia, for which also there is a patent in Maryland, 
the Maryland patent shall carry the land. 

There is not the slightest intimation in these articles, that Maryland 
had granted any land which, by the running of the divisional line, had 
fallen within the jurisdiction of Virginia. And not only were Horsey 
and others left in the undisputed and undisturbed possession and enjoy- 
ment of all their lands already granted by Lord Baltimore, but all of 
the remaining unpatented lands South of the prolonged line upon the 
North side of the Pocomoke river and bay, down to Cedar straits and 
Tangier sound, were, after 1668, granted by Lord Baltimore, and 
have been occupied and governed as Maryland territory, in as full, free 
and unquestioned manner as any other lands within the admitted 
limits of the charter. And the records of Somerset county show the 
transmission of title from the patentees, by deeds, wills, descent and 
judicial sales, down to the present owners. It was but natural, under 
the circumstances, that Col. Scarborough should desire to fix the line 
between Pocomoke river and the ocean, as far North as possible, so as 
to keep their lands, for which they had obtained grants from Virginia, 
under the Virginia jurisdiction. If he could have shown that " the 
extremest part of the Westermost angle" of the point made by the 
Big and Little Annamessix rivers, was the Watkins point of the 



42 

charter, then there could have been no doubt that the divisional line 
must have run thence by the shortest line to the ocean. But this was 
impossible. Hence the necessity to make Watkins point cover a very 
large extent of country. After having agreed upon its limits, it be- 
came necessary to fix the point of departure from the point so de- 
scribed, and " so called," to the ocean. 

That point of departure must be from the termination of Watkins 
point, on the Pocomoke river, because the preposition " from" is ex- 
clusive. If the Pocomoke river was not the Eastern bound of Wat- 
kins point, as described in the agreement, where was the Eastern bound ? 
Big Annamessick river or bay was on the North ; Pocomoke bay on 
the South, and certainly the sound (then sometimes called Nanticoke 
sound, but since known as Tangier sound,) was its Western bound. 
Then where, but at the Pocomoke river, was its Eastern bound ? 

To ascertain the point of departure on the Pocomoke river towards 
the ocean, they state " we have run an East line (not from but) 
agreeable with (that is to say, corresponding with, or in the direction 
of,) the extremist part of the Westermost angle of the said Watkins 
point, over Pocomoke river, to the land near Robert Holston's." The 
theory upon which they had agreed left them no alternative. They 
were to run the line East, frora Watkins point, and not across it. If 
they agreed upon such a theory as to what was Watkins point, they 
must abide by its logical results. Having fixed its Northern, Southern 
and Western limits on Tangier sound, they could not be certain how 
far North, within these limits, they could start for the ocean, on and 
from the Pocomoke river, without first having ascertained it in some 
mode, by fixing upon a point on the sound, within those limits, 
with which the line over the Pocomoke river to the ocean should be 
"agreeable," or correspond. If any line was actually run from a 
point on Tangier sound to the right shore of Pocomoke river, we can 
conceive of no other purpose of such a line consistently with their re- 
port and existing facta, than to ascertain the spot of departure on 
that river towards the ocean. If such line was ever run from the 
Westermost angle of Jones island, it traversed a space of more than 
15 miles from sound to river; crossing in its course Little Annames- 
sick river. Ape's Hole creek, East creek, and Merumsco creek; and 
the whole line, except where it crossed creeks and marsh, at that time 
was probably thickly set with large trees. It is impossible to conceive 
an adequate reason why, if the line was run as part of a permanent 
boundary line between Maryland and Virginia, they should not "have 



43 

marked certain trees" at the beginninf]^, and "so continued with ap- 
parent marks and boundaries/' to the Pocomoke river. That they did 
not do this, their report most clearly implies. And hence McDonald 
and Lee, commissioners in 1858, and their first instructions to Lieut. 
Michler to trace the line in question, state : "It is supposed that 
there is still standing some old marks of the Scarborough line;" and 
add, "It is inferred from documents in possession of the commis- 
sioners, that the commission of 1668 did not mark the line West of 
the Pocomoke river, and that in all x>rohahility you loill find no marks 
to guide you." And after Michler had run the prolonged line West- 
ward from the Pocomoke river to the sound, at Janes island, he re- 
ported that "No boundary line marks of any kind were found West 
ot the Pocomoke, and the inhabitants professed to be in ignorance of 
the existence of any." The same result attended the inquiries of the 
present commission after the most diligent and thorough examination, 
on oath, of many ol the oldest and most intelligent citizens now re- 
siding on, and in the vicinity of, the prolonged line. Again, if the 
line from " the extremest part of the Westeruiost angle" was to be 
the boundary from the sound to the Pocomoke river, there was cer- 
tainly as much necessity of marking the beginning on or near the 
sound, where the land was washing away, as there was for marking the 
beginning of the line Eastward at and from the crossing of the Poco- 
moke river. The " Westermost angle" must have been " the point 
without a name" laid down on Smith's Map, and described in the de- 
positions of Capt. Will. Jones, Col. Scarborough and others, made in 
1664, apparently for the purpose of indicating that point as the true 
Watkins point. That " point without a name on Smith's Map," 
must have been situated between the mouths of the Little and the 
Big Annamessick rivers. It was the only point of high land on the 
main for 20 or 30 miles Northward, after leaving the neck of high 
land, at the mouth of the Pocomoke river or bay. The rest of the 
country was low, broken marshes. That point of land afterwards be- 
came known as Janes island. In 1668 it must have extended, per- 
haps, three or four miles from the present shore line. Southwesterly 
into the sound. It has since been entirely washed away, leaving but 
a narrow, sandy beach, between the sound and an extensive marsh. 
Biit a long, narrow shoal, reaching far out into the sound, and the 
Southwesterly direction of the sound channel, the waters being forced 
there by the high land on the main, indicate its former locality. 
Living witnesses testified before the commissioners their recollection 



44 

of it when the end was a high clay bank some 12 to 15 feet above the 
water, and when wheat was grown upon it. There are traditions of 
a peach orchard near or on the spot where the light-boat was formerly 
anchored, considerable farther out from the shore than the present 
light-house on that shoal. Michler, in his report in 1858, stated that 
" although the angle of this point is even at this day the most West- 
ern one, still many years ago the land made out into the sound, a 
much greater distance. Janes island is said by Capt. John Nelson, 
aged seventy-two years, to have extended, within his recollection, to 
the present position of the light-ship, now anchored about a mile and 
a half from the present shore line." 

It must have been evident to Calvert and Scarborough in 1668 that 
all the points of land upon that shore were constantly and rapidly 
washing away by the action of the wind and waters — hence the ne- 
cessity of some marks upon the land nearby not liable to such change. 
But there being no such marks found, and no record or tradition of 
any, the loc?».tion of the " Westermost angle " has become impossible 
of any certain identifiiation, notwithstanding Michler's supposition 
that the anchorage of the light-ship was very near the initial point of 
the Scarborough line. But no such result has attended the boundary 
line on the east of the Pocomoke. Upon reaching " the land over the 
Pocomoke river near Robert Holston's," they " there marked certain 
trees, which are so continued by an Bast Hue, &c., to the sea side," 
with apparent marks and boundaries, which, by our mutual agree- 
ment according to the qualifications aforesaid, are to be received as the 
bounds of Virginia and Maryland. Michler's report stated that 
" Along the whole length of the line between Cingoteague bay and 
the Pocomoke river, a distance of between eighteen and nineteen miles, 
there were existing of such marks, at the time of the survey in 1858, 
thirty trees, one gate — the site of the ruins of an old house standing 
at the time the Scarborough line was run — two state roads located on 
the line measuring nearly ten thousand eight hundred feet, making in 
all one mark for every half mile." 

We submit that these facts are utterly irreconcilable with the idea 
that a continuous land line of fifteen miles from the sound to the Po- 
comoke river was ever run and intended to be considered as a ''divi- 
sional line between Virginia and Maryland," and that the East line 'of 
"marked trees" and of other "apparent marks and boundaries" from the 
Pocomoke river to the seaside was the only divisional line run from the 
Wfitkins point, ^' so called," and so agreed upon, " as the bounds of 



45 

Virginia and Maryland"; thus leaving the whole of Watkins point, as 
described and agreed upon by them, within the limits of Maryland, as 
the evident meaning of the charter required. The charter line, as we 
have seen, called for "a right line drawn from Watkins point on the 
West unto the main ocean on the East." " So that the whole tract of 
land, divided by the line aforesaid, between the main ocean and Wat- 
kins point unto the promontory called Cape Charles may entirely re- 
main forever excepted to us, our heirs and successors." 

The theory of the Calvert-Scarborough line leaves the water line 
of the Pocomoke river and bay to follow the Watkins point, " so 
called" in their agreement, to the Chesapeake bay as the divisional 
line separating Virginia and Maryland westwardly from the land near 
Kobert Holston's, on which stood the " certain marked trees." 

It has been already remarked that the theory that Janes island was 
the westefmost angle of the Watkins point described in the agreement, 
is based solely upon the fact that the prolongation Westward of the 
marked line reached Tangier sound at Janes island. 

In point oi fact it was not the most Western angle. All the indi- 
cations, as well as tradition, show that the most Western angle was at 
the Northern end of the neck of land which we suppose at that time 
to have extended from Annamessick marsh to nearly West of Onancock 
river, which Northern end subsequently became Fox island. Within 
the memory of living witnesses the Northwestern angle of that island 
extended fer out into the sound, and was heavily wooded with large 
pines. The stumps still remain far out in the water. This fact, 
especially when considered in connection with the traditions from old 
Mr. Nelson (the father of the John Nelson mentioned by Michler), 
that he had always heard that the divisional line between Virginia 
and Maryland crossed the North end of Fox island, would have indi- 
cated that place as the "Westermost angle" of the land afterwards 
formed into Fox island would have passed over the water of Poco- 
moke bay for some twelve miles or more, and thus being a water line, 
it was of course impracticable to indicate its locality by " apparent 
marks and boundaries." And this line, according to the location of 
Pocomoke bay and river on Smith's Map, probably reached the East 
shore of the river "^ near the land of Robert Holston," as mentioned 
in the agreement. The waters of Tangier sound and Cedar straits 
now cover the locality of that Northwestern angle. 

It is not, we think, difficult to show by Smith's History and Map 
that the " point without a name" on the map between what are since 



46 

known as the mouths of Big and Little Annamessex rivers^ was a to- 
tally different point from Watkins point, which is located and named 
on the map. In Dr. Russel's account of the exploring expedition up 
the Eastern shore (i. Smith's Hist. p. 174), it is stated that after leav- 
ing the river Wighcocomoco and having passed Russel's (now Tangier) 
islands, "falling with a high land upon the main, found a great pond 
of fresh water, but so exceeding hot we supposed it some bath; that 
place we called Point Ployer, in honor of that most honorable house 
of Monsay, in Brittaihe, that in an extreme extremity once relieved 
our Captaine. From Wighcocomico to this place all the coast is low 
broken isles of morass, grown a mile or two in breadth and ten or 
twelve in length, good to cut for hay in summer and to catch fish and 
fowl in winter; but the land beyond them is all covered over with 
wood, as is the rest of the country." 

The mouth of the Wighcocomoco or Pocomoke then was, 9,s it now 
is, south of what now is known as Watts island. Thence sroing; North 
you pass Tangier islands, then (including Fishbone and Heme islands) 
extending as far North as Fox island is now. From the mouth of 
the Pocomoke to Point Ployer at that time (1608) the coast was low 
broken isles of marsh. And from Cedar straits to Janes island such 
is now the character of the coast. There may then have been (in 
1608), and for thirty years thereafter, an unbroken neck of land, as we 
have supposed, flanked on the East and West by low, broken islands of 
marsh, which have long since been washed away, and some of them 
have become submerged within the memory of living witnesses. 
Smith's Map indicates many islands in that vicinity which no longer 
are seen. The distance of ten or twelve miles from the mouth of the 
Pocomoke river North would about reach the place indicated by Janes 
island bar, as formerly occupied by Point Ployer. There is no tradi- 
tion, so far as we can learn, of " a great pond of fresh water so ex- 
ceeding hot" as is described by Dr. Russel. It was probably near 
the shore where they landed, and must have been occasioned by a 
subterranean boiling spring. Before the settlement of Europeans in 
that vicinity, the point containing this great pond of hot fresh water 
was doubtless washed away, or else probably some tradition of such 
a natural curiosity in such a locality would have been handed down 
from one generation to another. There is a place in the sound de- 
scribed as being not far from the end of the bar, and North of the 
present Janes island light-house, called "Puffy hole." Tradition 
says that at that place, for the space of a hundred yards around, the 



47 

water was always in commotion, as if boiling up from the bottom, 
even in a perfect calm, and when other waters around it were still, 
and that formerly there were no soundings. It is said that this spot 
was often visited by the British officers during their occupation of 
Tangier island in the war of 1812, and that on one occasion they 
ran out ratline enough to fill a hogshead without finding bottom. 
The map of the United States coast shows that near the Northwest 
end of the bar there is a sounding at the depth of fourteen and a half 
fathoms, with soundings rapidly shoaling on the South to nine, and 
on the East and West to six fathoms and less. But the locality of 
Point Ployer is shown further by the mention in the account of 
Smith's second expedition of Watkins, Reads, and Monfords points 
being on each side of Limbo. Smith's Map shows the location of 
each of those places : the straits of Limbo (now Hooper straits), with 
Monfords point, to the North of them, and Watkins and Reads points 
to the South on the Pocomoke river. 

After the above description of Poynt Ployer by Dr. Russel, his ac- 
count proceeds : " Being thus refreshed in crossing over from the 
main to other isles," they were in great danger of being lost in a ter- 
rible storm. They were forced by ill weather to remain two days on 
these uninhabited islands, which they called Limbo. Thence sailing 
for the main they fell in with the river Cuscarawaock (theNantikoke), 
thence they " passed by the straits of Limbo for the Western shore." 
The isles they called Limbo were evidently those now known as Smiths 
islands and Holland islands. And the only point of high land "upon 
the main " from Russels (Tangier) isles to Nanticoke river was that 
since known as Janes island, which must have been the Point Ployer 
of Smith's History. 

It was therefore a mistake to suppose that that point was ever any 
part of the Watkins point of Lord Baltimore's charter. 

Another mistake was the course of the line, a mistake which was 
not discovered until 1858, when the line was traced by Michler. In- 
stead of finding it an East line as called for in the agreement, he found 
it 5°, 15" North of East. This error, Michler supposes, was occa- 
sioned by running the line by compass, without allowing for the vari- 
ations of the needle, which he found to have been about 5° 15" in 
1668. 

The mistake in running the line from the Pocomoke river to the 
ocean without allowing for the variation of the needle, gave Virginia 



48 

twenty- three square miles (14,720 acres) of Maryland territory in the 
Northern part of Accomack county. 

But the agreement, whatever may be its true construction, was ac- 
quiesced in by Charles II. and Lord Baltimore, who were the princi- 
pals in the controversy. We have shown the practical construction of 
the agreement by Lord Baltimore in continuing to hold and grant all 
the lands North and West of the Pocomoke river and sound and 
Cedar straits. In the absence of any evidence to the contrary, we 
submit that Charles II. and his governor and conncil of Virginia ac- 
quiesced in that construction, and if that construction was not the 
true one. Col. Scarborough, at least, would have been found remon- 
strating against it. Doubtless Scarborough was entirely satisfied with 
the result of his negotiation. Lord Baltimore had been required to 
abandon the valuable and extensive territory between Onancock river 
and the divisional line, which Scarborough so carefully designated by 
" marked trees " and other " apparent boundaries." There were many 
weighty reasons constraining Lord Baltimore to adjust his controversy 
upon the best attainable terms. His charter had narrowly escaped the 
ordeal of the parliamentary and Cromwellian revolutions. And he 
was well aware of other controversies threatening still more important 
portions of his territory. It was necessary to conciliate the Virginians 
and to end the controversy with the agents of his sovereign. He was 
well aware that Charles II., whilst in exile, in the year after his 
father's death on the scaffold, had granted the " Northern Neck " to 
Lord Hopton and others, and, as stated in Col. McDonald's report, in- 
cluding " the rivers Potomac and Rappahannock, and all the islands 
within their banks"; and that after his restoration to the throne, in a let- 
ter dated in 1663, just at the time when Scarborough raised the question 
as to the true location of Watkins point, the king had referred to 
his grant to Lord Hopton as embracing " all the land lying between 
the rivers Potomac and Rappahannock and Chesapeake bay, together 
with the rivers themselves and all the islands within the banks of said 
rivers." thus coming in direct conflict with the charter of Maryland 
upon the line of Potomac. In addition to this, Lord Baltimore knew 
the immediate danger to his territory on the Delaware bay. Charles 
II. had, in 1664, granted a patent to his brother James, Duke of 
York, for sundry tracts of land in America, including all the land 
from the West side of Connecticut river to the East side of Delaware 
bay, and had sent naval and land forces, whereby the Swedes and 



49 

Dutch were compelled to submit to his majesty, and the Delaware 
territory was placed under the rule of the Duke of York. Thus it 
remained in 1668, when Scarborough and Calvert met to determine 
"the place that should be accounted" Watkins pointy 

In this situation, Lord Baltimore was compelled to yeild to Scar- 
borough's demands. This he did, probably, also, in the hope thereby 
to strengthen his position in regard to the impending controversies as 
to the Delaware territory and the Northern Neck. It was doubtless 
to this yielding of the territory in Accomack, between Onancock river 
and the divisional line, that Philip Calvert referred in his remarks to 
Wm. Penn during the interview between the lord proprietary, Charles 
Calvert, and Penn, at West river, in December, 1683. Penn had, in 
1681, obtained from Chas. II. a charter for Pa. In 1682, he obtained 
a release from the Duke of York of his claim to Pennsylvania, and 
also grants of the three lower counties of Delaware. Thus fortified, 
and with a letter to Lord Baltimore from the king, he went to West 
river to adjust the boundaries of the two provinces. In his report of 
the interview to the lord's committee of plantations, he states : " The 
first thing I did was to present the king's letter, which consisted of 
two parts — one, that the Lord Baltimore had but two degrees, and 
the other, that he should admeasure his said degrees at 60 miles to a 
degree. This being read by him first privately, then publicly, he told 
me the king was greatly mistaken, and that he would not leave his 
patent to follow the king's letter, nor could a letter void his patent, 
and by that he would stand. This was the substance of what he said 
from fi.rst to last during the whole conference. To this I answered, 
the king might be misinformed rather than mistaken, and that I was 
afraid the mistake would fall on his side, for though his patent begins 
at Watkins point and goes to the 40° of North latitude, yet it pre- 
sumed that to lie in the 38°, else Virginia would be wronged, which 
should extend to that degree, &c. 

To this his uncle and chancellor returned that to convince me his 
father's grant was not by degrees, he had more of Virginia given him, 
but, being planted, and the grant intending only land not planted or 
possessed, but of savage nations, he left it out, that it might not for- 
feit the rest," 

Penn certainly misunderstood Chancellor Calvert's remark. The 
only places within the charter limits ever claimed to have been settled 
by Virginians before the date of the charter, were Kent and Palmers 
7 



50 

islands ; and they were not " left out/' but were awarded to Lord 
Cecelius Calvert, as covered by his charter. 

Chancellor Calvert's allusion was, doubtless, to the fact, that the 
charter of Mandand covered "more of Virginia" on the Eastern 
shore, in Accomack, than Lord Baltimore then claimed, but being 
settled by Virginians in 1668, " he left it out" by the Calvert-Scar- 
borouo-h agreement. It is inferred from a letter from Col. Scarbo- 
rough to the governor of Maryland, relating to his intended expedi- 
tion against the Apateague Indians, dated "From Onancock, August 
28th, 1659," that settlement had already been made at that place. 
And as before 1668 Virginia grants had been made far beyond the 
" divisional line" agreed upon, it is highly probable that the Vir- 
ginians were in the actual occupancy of most of the lands between 
Onancock and the divisional line when Calvert and Scarborough met. 
Penn was probably not aware of the circumstances, and hence did not 
comprehend the scope of the remark. There is no mention whatever 
of any line of latitudes in the "agreement" of 1668, because there 
was none in the charter. The " divisional line " agreed upon from 
the Pocomoke to the ocean, happened to be on or near the 38th par- 
allel as then laid down upon the maps before, and at that time ex- 
isting ; and perhaps from this coincidence arose the mistake of the 
kino- and Wm. Penn. But that the Southern end of Watkins point 
was understood to extend below the 38th parallel, and to be wholly 
included within the limits of Somerset county, as described in the 
act of Maryland assembly of 1742, before cited, is clearly shown by 
an ancient map found among the papers of Josiah Bayley, for many 
years attorney general of Maryland, and for which we are indebted 
to his son. Dr. Bayley, of Cambridge, Maryland. The map is in- 
scribed, " To the American Philosophical Society." This map of the 
peninsula, between Delaware and Chesapeake bays, with the said 
bays and shores adjacent, drawn from the most accurate surveys, is 
inscribed, "by John Churchman." It is without date, but was made 
before 1776, because it has the name of " West New Jersey," and 
after 1742, because it has Worcester county delineated upon it, as 
separated from Somerset, by the act of 1742. It is upon the largest 
scale of any ancient map we have seen, and altogether the most accu- 
rate, except that it is singularly erroneous in the location of Tangier 
and Watts islands. The 38th parallel of latitude on this map crosses 
the Chesapeake at the Southern shore of Potomac river, a little North 



51 

of Smiths point; crosses an island, we suppose to have been inten- 
ded for Smith's island ; crosses a peninsula called Watkins point near 
its Southwestern end ; crosses Pocomoke bay and an island in it, at 
Ratcliffe jioint ; and crosses the Peninsula to the ocean, upon the 
divisional line as located on this map, between Worcester and Acco- 
mack counties, Bozman says, truly, that Kussels isles, on Smith's 
Map, ^' were the largest cluster within the bay." He remarks upon 
the extraordinary circumstance, that in the latest and best maps of 
Maryland and Virginia at that day, (1811,) a disagreement occurs in 
the denomination given in these lowest islands. In Griffith's Map of 
Maryland, published in 1794, they are called Tangier islands ; but in 
that of Virginia, published by Bishop Madison in 1807, these same 
islands are denominated " Watts islands," and they are so called in 
the old Churchman map before mentioned. 

Lord Baltimore persistently refused to ascertain his Northern bounds 
by measuring two degrees from any place. The controversy with 
Penn about the Delaware territory was referred by Charles II. to the 
lords of the committee of trade and plantations, in 1683, but their 
report was not made until after the death of Charles and the accession 
of James II., in 1685. The report recommended, that the land be- 
tween the Delaware and Chesapeake bays should be divided into two 
equal parts, by a line from the latitude of Cape Henlopen to the 40th 
degree of N. latitude, (the South boundary of Pennsylvania by 
charter,) and that one-half thereof, lying towards the bay of Dela- 
ware and the eastern sea, be adjudged to belong to his majesty, (viz., 
to King James, who granted it to Wm. Penn, when Duke of York,) 
and that the other half remain to Lord Baltimore, as comprised in his 
charter." 

This division was by the king in council ordered immediately to 
be carried into effect, (the order enuring to the benefit of Penn as 
grantee of James Second, when Duke of York,) and though delayed 
for many years by obstructions of Lord Baltimore, was finally, by 
Queen Anne, ratified and confirmed in all parts, and commanded to 
be put in execution without delay. (Proud's History Pennsylvania, 
vol. i., 293, &c.) 

By this order of the king, in council then ratified and ordered to be 
carried into immediate execution by Queen Anno, it was proposed to 
deprive Lord Baltimore of more than one and a quarter millions of 
acres of his territory upon the pretext afl^orded by two unfortunate 
Ijatin words in his charter — " hactuaes incutta," which, though urged 



52 

in vain against the charter by the Virginians in 1633, 1638, and dur- 
ing Cromwell's time, and by the Dutch ambassador in 1659, were 
finally made available to accomplish this momentous result under the 
potent influence of Wm. Penu. But the order still remained unexe- 
cuted. Perhaps the mode of enforcing its execution, consistently 
with the principles of Magna Charter and English law, was not free 
from doubt. And though Lord Baltimore's right to the 40° of North 
latitude was expressly recognized by the report of the committee of 
plantations, and by its confirmation by the king and council, Penn 
persisted in his efibrts to extend his Southern bounds to the head of 
Chesapeake bay. He procured a writ of quo warranto to be issured 
against Lord Baltimore's charter, thus threatening it with total de- 
struction. But the revolution of 1688, and other revolutions and 
troubles, so affected both proprietaries and their provinces that the 
controversy lingered till the death of Penn, in 1718; was revived by 
his sons and devisers, who, in May, 1732, obtained from Lord Balti- 
more a written agreement whereby he conceded to the Penns the Del- 
aware territory, and that the Southern boundary of Pennsylvania 
should begin at a latitude of 15 miles South of the most Southerly 
part of Philadelphia, and run due West to the Western extremity of 
the two provinces. The agreement was finally enforced by a decree 
for specific performance passed in 1750, which formed the basis of 
another agreement between the two surviving Penns and Lord Fred- 
erick Baltimore in 1760. The result was the completion of the ex- 
isting line between Delaware and Maryland, and Pennsylvania and 
Maryland in 1768. 

We submit that this historical summary, the facts of which are 
unquestionable, clearly show that the location of the Pa. line 15 miles 
below the 40° of latitute or at 39°, 43', 18" North of the equator, 
was not the result of a line run or measured North, two degrees, at 
60 miles to a degree, from Watkins point on the 38th parallel of lat- 
itude, as stated by Col. McDonald in his report. And we further 
submit that the 38th parallel either as erroneously located in former 
times or as correctly located on the map of Chesapeake bay, made by 
the United States coast survey, has no connection whatever with the 
question of the true location of Watkins point, as called for in the 
charter or of the Calvert-Scarboroujjh line. 



53 



The Western Boundary of Marijland. 

The boundary lino between Maryland and Pennsylvania extended 
West to the true meridian of the first source of the river Potomac. 
Whether this first source was at the head of the North or South 
branch was a subject of controversy, between the proprietary of Mary- 
land and the claimants of Northern Neck, down to the revolution — 
1776; and between the states of Maryland and Virginia from that time 
down to the year 1852. 

During the controversy, actual surveys proved that the source or 
first fountain of the South branch was the most Western, and the 
proprietary of Maryland and the state of Maryland had persistently 
claimed to the first fountain of that branch. It may be true that 
Lord Baltimore's charter did not confine him expressly to follow the 
true meridian to that first fountain. And if this be admitted, we 
submit that the result would have been to give to Lord Baltimore his 
election between following the meridian due South to the first foun- 
tain and selecting the most advantageous line in a Southeasterly di- 
rection to the further — that is, the Southern bank of the stream which 
flowed from the first fountain. Sir George Calvert was well aware 
that in construing grants from the sovereign the rule of the common 
law, that the grant shall be construed most strongly against the 
grantor, is reversed from considerations of public policy: and, there- 
fore, in preparing his charter, he provided against the operations of 
this rule of construction, by the 22d section of the charter, as follows, 
viz : "And if peradventure, hereafter it may happen that any doubt 
or question should arise concerning the true sense and meaning of any 
word, clause or sentence contained in this our present charter, we will 
charge, and do command, that interpretation, to be applied always 
and in all things and in all our courts and jurisdictions whatsoever, 
to obtain which shall be judged to be more benefical, profitable and 
favorable to the aforesaid Baron of Baltimore, his heirs and assigns." 

McMahon's History of Maryland, p. 50, states the grant of Lord 
Hopton and others to have been "of all that tract of land, lying and 
being in America, and bounded within the heads of the rivers Rappa- 
hannock and Quircorigh, or Potomac (the courses of the said rivers as 
they are commonly called and known by the inhabitants) and the 
Chesapeake bay." 

He says : " These grants of the Northern Neck, as it will be per-. 



54 

ceived, call for the lands lying on the South side of the Potomac to 
its head, and in this call there was nothing inconsistent or clashing 
with the call of the charter of Maryland," and "therefore a conflict 
between these two grants could only arise from the extrinsic difficulty 
or doubt as to the true location of the first fountain or head." On 
page 69 McMahon says : "As to the chartered extent of Maryland 
there can be little room for doubt." " The first fountain of the Po- 
tomac" is evidently a descriptive term intended to designate the most 
Westerly source, and applies to the South branch, the source of which 
lies considerably West of that ot the North branch. The extent of 
territory lying between the two branches is estimated at half a mil- 
lion of acres, including some of the most fertile lands of Virginia." 
In 1776 Fairfax was proprietor of the Northern Neck, to the extent 
of the ownership of the land, but subject to the jurisdiction of the 
royal government ot Virginia. By the constitution of Virginia of 
1776 the commonwealth succeeded to all the rights of sovereignty be- 
longing to an independent nation. That constitution declared that 
" the territories contained within the charters erecting the colonies of 
Maryland, Pennsylvania, and North and South Carolina, are hereby 
ceded, released, and forever confirmed to the people of these colonies 
respectively, with all the rights of property, jurisdiction and govern- 
ment, and all other rights whatsoever which might at any time here- 
tofore have been claimed by Virginia, except the free navigation and 
use of the rivers Potomaque and Pocomoke, with the property of the 
Virginia shores and strands bordering on either of the said rivers, and 
all improvements which have been or shall be made thereon. 

" The Western and Northern extent of Virginia shall in all other 
respects stand as fixed by the charter of King James I. in the year 
1609, and by the public treaty of peace between the courts of Britain 
and France in the year 1763, unless by act of this legislature one or 
more governments be established Westward of the Alleghany moun- 
tains." 

The state of Maryland had succeeded to all the rights of Lord Bal- 
timore's charter, but the act of quit claim of Virginia still left open 
the question as to the extent of the territory contained within the 
charter. The controversy, from the beginning, seems to have been 
confined to the question whether the Maryland charter extended to 
the North or to the South branch. Ptepeated efforts to settle it by 
commissioners appointed by the respective states failed. At length 
Maryland, by the act of 1852, proposed to adjust and mark the West- 



55 

em boundary line, " beginning therefor at the Fairfax stone." This 
offer was accepted by the act of Virginia of March 1858, and by an 
act of Maryland of March 18G0, the line "as surveyed in the year 
1859 by the commissioners appointed by the states of Maryland and 
Virginia" was established as ''the Northwestern line of the state." 

Thus ended a controversy of more than a century's duration. And 
the results of losses to Maryland of territory once clearly included 
within the limits of her charter may be estimated thus : To Delaware, 
one and a quarter millions of acres; to Pennsylvania, two and a half 
millions of acres; and to Virginia, a half million of acres — making a 
total of four and a quarter millions of acres of land, in addition to 
about one hundred and fifty thousand acres '' left out" between Onan- 
cock river and the Scarborough line on the Eastern shore. 

The SoutJnvestern Boundary Line of Maryland. 

After the call to the true meridian of the first fountain of the river 
of Potomac, the charter saj's, " thence verging towards the South 
unto the further bank of the said river, and following the same on the 
West and South, unto a certain place called Cinquack." (Bacon's 
translation.) '• Thence stretching towards the South unto the furthest 
bank of the said river, and following the West and South side thereof 
unto a certain place called Cinquack." (Ogilby's America.) " Then 
tending downwards towards the South, to the further bank of the 
said river, and following it to where it faces the Western and Southern 
Coast, as far as to a certain place called Cinquack, situate near the 
mouth of the said river, where it discharges itself into the forenamed 
bay of Chesapeake." (Thos. Edlyn's Tomlins.) 

At the time of Lord Baltimore's charter the Potomac river had 
been explored only to the falls, and up the Quirough, which was sup- 
posed to head further West than the main river, and both were sup- 
posed to head East of the Blue Ridge. In this uncertainty, and with 
the aid only of Smith's Map, the descriptions of the head springs, and 
course of the river, were necessarily conjectural, and therefore vague. 
Like the other great rivers flowing into the bay, on its Western 
shore, its general course was supposed to be Southeast. In describing 
the Western line from Delaware bay, the charter had the words, 
" transeundo orecta linea per gradum predictum usque ad verum me- 
ridian um," — going by a right line on the degree aforesaid as far as to 
the true meridian, &c. But after arriving at the true meridian of the 



56 

first source of the river, another word is used to indicate the course, 
viz.', " deinde vergendo versus meridiem," — thence tending, or the old 
word " trending," towards the South ; " ad retteriorem dicti fiumenis 
ripam" — to the farther bank of the said river; " et earn sequendo," 
and following it, (the bank, not the river, for if " it" referred to the 
river, the Latin would have been " id," agreeing with " flumen," 
understood,) " qua plaga occiden talis et meridionalis spectal" — where 
the Western and Southern coast or shore looks; meaning where, or 
in the direction that, the right bank or shore looks, or in the direction 
towards which the right shore lies ; as contradistinguished from the 
left bank, or shore, which is the Eastern and Northern shore. Bacon's 
version has "ad meridionalem," in the place of " et meridionalis" in 
the copy from the Kolls' office. And this seems to be the " gross de- 
parture from the original," which Col. McDonald supposed led to the 
erroneous opinion, or translation, indicating the Southwestern shore 
of the Potomac as Maryland's boundary. It is probable that "et 
meridionalis" is the correct version, as it is better Latin and more ac- 
curately descriptive. But it is not perceived that the sense is mate- 
rially changed. The translation would be " where the Western coast 
looks toward a Southern direction" — " meridionalem" being an adjec- 
tive^ a noun must be understood or supplied. Mr, Tomlins is cer- 
tainly in error in translating the words, "qua plaga occidentalis et 
meridionalis spectal" — "to where it faces the Northern and Southern 
coast." To what does "it" refer ? Certainly not to the preceding 
"it," for that referred to "earn (ripam," understood.) "Plaga," 
shore or coast, is substituted for "ripa" bank. "Plaga," is the 
nominative to "spectal" — and there is nothing in the Latin to 
be translated "it." It is the " coast or shore" that "faces," or looks, 
or "lies toward." But it is submitted, with deference to Mr. Tomlins, 
a London " attorney at law and record solicitor," that " plaga," the 
coast or shore, is personified and represented as looking at the river 
and following the flowing stream with its gaze in its onward course 
towards the bay. In 1829, Chancellor Bland, of Maryland, in deci- 
ding upon a claim to certain water rights on the Potomac river, and 
remarking upon the jurisdiction of Maryland over that river said : 
" The boundary called for in the charter of Maryland is from the first 
fountain of the river Potomac; thence verging towards the South unto 
the further bank of the said river, and following the same on the 
West and South unto a certain place called Cinqiiack, situate near 
the mouth of the said river, &c. To the full extent of this call for 



57 

the right bank of the Potomac, Md. held; and under that holding all 
the islands in the river have been granted by patent from tlie land 
office or legislative enactments or titles derived from this state." ■•' 

*' Before the revolution, Maryland granted lands between the North 
and South branches of the Potomac." Binney's case, 2 » Bland's 
Chancery Reports, 127. 

The Virginia constitution of 1776 and the compact of 1785 cer- 
tainly modified, to some extent, the charter limits of Maryland. 
There were a few maps after 1750 which indicate the divisional line 
on the North shore of the Potomac to Point Lookout. These were 
probably so made in the interest of the Fairfax claim under the grant 
of Charles II. to Lord Hopton and others. The recital of the terms 
of this grant by McMahon and by Col. McDonald shows a material 
difference. McDonald says : '' The express words were the rivers of 
Potomac and Rappahannock, and all the islands within their banks." 
If these were the terms of the grant, so far as they relate to the Po- 
tomac and its islands, they were in direct conflict with the charter of 
Charles I. to Lord Baltimore, nearly twenty years before the grant to 
Hopton, and, of course, to that extent were merely void. One or two 
maps have been found which indicate the divisional line dov/n the 
middle of the Potomac river and across the bay to the South of Wat- 
kins point and up the Potomac river. But the most authentic maps 
existing in 1776 indicated the line from Smiths point direct to Wat- 
kins point. It is remarkable that in the compact of 1785 provision is 
made for punishing offences committed on that part of Pocomoke 
river within the limits of Virginia or where the line of division be- 
tween the two states upon the said river ts doubtful," but no such 
provision is made in regard to the Potomac, a much wider river. The 
reason must have been that Virginia had excepted from the limits of 
the Maryland charter on the Potomac river only " the Virginia shore 
and strand/' which could only extend to low water mark, and to such 
improvements beyond that mark, as Virginia might deem proper to 
authorize, leaving the residue of the river within Maryland jurisdic- 
tion for punishing offences committed upon it. This seems to be the 
legal effect, so far as regards the question " of jurisdiction." For all 
beneficial purposes, such as " the right of fishing in the river," &c. 
The compact is that " the river shall be common, and equally enjoyed 
by the citizens of both states." It is understood that the above is the 
construction acted upon by the judiciary of both states, and hence 

within a few years a Virginia court declined to take jurisdiction of a 
8 



58 

homicide committed on a steamer lying at Acquia creek, because the 
proof was that the offence was committed on a part of the steamer 
which was below low water mark. The prisoner was seat to Mary- .• 
land, tried, convicted and executed in Charles county, Maryland. 

There seems to have been no difficulty originally in understanding 
the meaning of the charter. The line of boundary began at a point 
on the Chesapeake bay; thence by a right line to the ocean; thence by 
and with the ocean and Delaware bay to the 40th degree of latitude; 
thence West by a right line to the maridian of the first source of the 
Potomac river, thence towards the South (and a right line South an- 
swers that description) to the farther bank of the river; thence follow- 
ino- the bank and the Western and Southern shore of the river down 
to Cinquack near the mouth of the river, and thence by the shortest 
line to the beginning. There never was any doubt where Cinquack 
was. It is plainly marked on Smith's Map and Lord Baltimore's Map, 
and all the ancient maps, and was rightly described in the Virginia 
proclamation of 1638 as being at the Great Wicocomico river and the 
starting place of the last line of the charter. 

That the Southwestern shore of the Potomack was, down to 1776, 
understood by the Virginians, to be the boundary line of the Maryland 
charter, is, we submit, implied by the terms used and already cited 
from the Virginia Constitution of that date. The territory contained 
within the charter is ceded to Maryland, with all rights which might 
at any time have been claimed by Virginia, except the free navigation 
and use of the Potomack and Pocomoke rivers, with the property of 
the Virginia shores and strands bordering on either of said rivers, and 
all improvements which had been or shall be made thereon. And we 
think it is still more clearly implied by the compact of 1785, re-en- 
acted in the Virginia Code of 1849 and 1860, under the title " Com- 
( pact and Boundary between Virginia and Maryland." The tenth sec- 
Sibn declares : " That crimes and offences committed in that part of 
the Chesapeake bay which lies within the limits of Virginia, or that 
part of the bay where the line of division from the South point of 
Potomac river (now called Smiths point) to Watkins point, near 
the mouth of Pocomoke river, may be doubtful; and on the part of 
Pocomoke river within the limits of Virginia, or where the line of di- 
vision may be doubtful," &c. This article assumes as a fixed fact 
that the line of division runs from the South point of the Potomac 
river, now called Smiths point, to Watkins point, near the mouth of 
the Pocomoke river. And by this compact Maryland gave up her 



59 

charter claim to follow the bay shore down to the place formerly \ 
known as Cinqunck, at the mouth of Great Wicocomoco river, distant 
about six miles South from Smiths point. And again : This fixed 
fact is assumed by the action of both states in authorizing the joint 
commission of 1858. The Virginia act of March 2Gth, 1858, recites 
that : " Whereas the general assembly of Maryland has passed two 
acts for running the boundary line between that state and the state of 
Virginia, beginning therefor at Smiths point, at the mouth of the Po- 
tomac river, and running thence to the Atlantic ocean, to form the 
Eastern line; begmniug at the Fairfax stone, on the Totoraac river, 
sometimes called the North branch of the Potomac river, at or near 
its source, and running thence due North to the line of the state of 
Pennsylvania, for forming the Western boundary line; and, whereas, 
the legislature of the state of Maryland has requested the appoint- 
ment of a commissioner on the part of this state to act in concert with 
the commissioner of Maryland to run, ascertain and mark the said 
lines : Therefore, 

" I. Be it enacted by the general assembly of Virginia, That the 
governor be and he is hereby authorized and required to appoint as 
soon as may be, a commissioner, who, together with a commissioner 
who may be appointed on the part of Maryland, shall cause the said 
lines to be accurately surveyed, traced and marked with suitable mon- 
uments, from Smiths point, at the mouth of the Potomac river, to 
the Atlantic ocean; and from Fairfax stone, situated as aforesaid, to 
the Pennsylvania line as aforesaid." 

We think, therefore, that it ought to be considered settled beyond 
question that the divisional line across the Chesapeake bay is to be 
run from Smiths point. There can be no doubt about the true loca- 
tion of Smiths point. It is upon the island at the mouth of Poto- 
mack river, which, by patent, dated 18th March, 1650, was granted 
by Sir Wm. Berkley, governor of Virginia, unto Sam'l Smith, for 529 
acres of land. It is described in the grant as abutting Northerly upon 
the mouth of Potomac river; Southerly upon Little Wickocomico 
creek; Easterly upon ye raayne bay; and Westerly upon a branch 
that divides this land from a parcel of land commonly called " King's 
Neck." Of course, like all other points of land similarly situated, it has 
been washed away, and greatly changed since 1785. Mr. Dela Camp, 
who made the survey of Somers cove and of the shore of Janes island, 
under the direction of Michler, in 1858, and again under the joint 



60 

commission of 1867, stated in his report that he found all of them 
very much changed since 1858. 

The map of the United States coast survey, showing the sound- 
ings in the vicinity of this island, may be considered as indicating 
with reasonable certainty where the land originally extended. 

The boundary line across the ChesapeaTce hay. 

The description of this line in the charter is brief and free from 
doubt — viz : From Cinquack " by the shortest line to the aforesaid 
promontory, or place called Watkins point." 

The American Atlas, containing the most correct and authentic 
maps of the British colonies down to 1776, has ''a Map of the Mid- 
dle British Colonies, by Lewis Evans, of Philadelphia, corrected and 
improved by Thos. Jeffreys, geographer to the king, and published in 
London 15th June, 1775," which indicates the divisional line between 
Virginia and Maryland from Smiths point, near Cinquack, a few de- 
grees to the North of East, passing South of Watkins point through 
Pocomoke bay and across the peninsula to the ocean. It contains 
also "A Map of the most inhabited part of Virginia and the whole 
province of Maryland," &c., drawn by Joshua Fry and Peter Jeffer- 
son, in 1775, and inscribed by Thos. Jeffreys to the Earl of Halifax 
and the other hon. commissioners for trade and plantations. Wat- 
kins point is distinctly laid down on this map, and the divisional line 
across the peninsula East to the ocean is clearly marked below the 
38°th of latitude, and under it are these words : " This line was run 
27 May, 1688." The line on the Potomac and across the Chesapeake 
bay is not indicated on this map. Smiths point is shown as an island 
at the mouth of the Potomac and Little Wicomico rivers, a very lit- 
tle South of Watkins point on the Eastern shore, as located on this 
map. 

In the rooms of the Maryland historical society is "A Map of Vir- 
ginia, Maryland, Pennsylvania, and East and West New Jersey, by 
John Thornton, at the Piatt in the Minories, and by Wil. Fisher, at 
ye Postern Gate, on Tower Hill, London," supposed to have been pub- 
lished about the year 1700. On this map the divisional line between 
Virginia and Maryland begins at Smiths point, thence across the bay 
by a due East course, and crosses the peninsula to the ocean by a line 
indicated by a row of boundary trees on each side of it. The divi- 



61 

eional line on this map leaves Smiths island entirely in Maryland. 
The Churchman Peninsula Map, before described, has no divisional 
line indicated across the bay. The island on which is Smiths point 
is located about two miles South of the 3Sth parallel as located on 
this map, and an East line from it crosses the lower end of an island 
supposed to represent Smiths island, and touches the Southern end of 
Watkins point, and if extended would strike the East shore of Poco- 
moke bay about two miles South of the 38th parallel. The shortest 
line upon the map of the United States coast survey from Smiths 
point, running East about three d< grees North, will strike the West- 
ermost angle of Great Fox island near Cedar straits, and the shortest 
line to the land North of Cedar straits and Pocomoke sound will 
strike the Westermost angle of a tract of laud called Plain harbor, 
granted by the proprietary of Maryland on the 19th day of July, 
1702, to Isaac Horsey and Nathan Horsey for five hundred acres of 
land. The patent described this land as lying and being in Somerset 
county, between the sound and Pocomoke bay and Cedar straits, be- 
ginning at the mouth of a creek on Pocomoke bay, on the Westermost 
side thereof, called Broad creek; heuce along the said bay Westerly 
several courses and distances to Cedar straits; thence along therewith 
North 151 degrees Westerly, taking in Cedar hammock, 118 perches 
to the sound or bay-side; thence along the sound Northwesterly North, 
&c., &c., to the beginning. 

This patent of Plain harbor completes the chain of Maryland grants 
extending from Tangier sound by Cedar straits to Pocomoke bay and 
up the Northeastern shore of the bay and river to the land West of 
the besinnins of the Calvert-Scarborough line at the marked trees on 
the East side of the river, covering all the land South of the prolon- 
gation Westward of that line to the sound at Janes island. It is ad- 
mitted that no grant from Maryland has been found for the land 
South of Cedar straits; but that since they were found, and after the 
neck of land which formerly «^xtended from Annamessex marsh South- 
ward to the North side of the mouth of Pocomoke bay at Watts island 
had been broken into Fox and Watts islands, those islands appear to have 
been granted by Virginia, and to have been since held, and are now 
held under Virginia titles; and have ever since the date of the grants 
of Fox island in 1699, and of Watts island in 1702, been under the 
jurisdiction and government of Virginia, as part of Accomac county, 
as fully and as exclusively as the lands upon the North side of Cedar 



62 

straits and Pocoraoke bay, as before described, have been owned, held 
and governed under Maryland grants, as part of Somerset county. 

The record of these grants by the respective states, and the certain 
holding in accordance with them, strongly corroborate our construction 
of the Calvert-Scarborough agreement, and the tradition derived 
through old Mr. Tornemay Nelson, that the divisional line between the 
two states crossed the North end of Fox island. That part of the 
island where the line was said to cross, has doubtless long since been 
washed away, and is now covered by the waters of the sound and Ce- 
dar straits. The tradition must have had its origin (after Smiths 
point had been substituted forCinquack as the starting point towards 
the Eastern shore) in the fact that the Northwestern angle of Fox 
island was the point which would be reached by the shortest line from 
Smiths point; for there is no record that any line was ever run across 
the bay, or any means adopted by the two states to fix a boundary at 
the termination of the line on the Eastern shore. After the agree- 
ment of Calvert and Scarborough that the North point, formed at the 
mouth of Pocomoke river by the bay, should no longer " be accounted" 
the Watkins point of the charter, as claimed by Lord Baltimore, but 
that the parcel of land tis described in their agreement should be so 
''accounted," it became inevitable that the line across the bay from 
Smiths point should strike the angle of that Watkins point nearest 
to Smiths point. And that angle is at Cedar straits. 

Smiths Island. 

A right line from Smiths point to Cedar straits, as those places are 
located on the map of the United States coast survey, leaves all of 
Smiths island as located on that map within the limits of Maryland. 
The Churchman Map and most of the maps we have examined, which 
were made before the United States coast survey, locate Smiths island 
farther South than its true position as ascertained by the coast sur- 
veys. 

The experimental line, run by the direction of the joint commis- 
siouf-'rs in 1858, in its prolongation Westward from Pocomoke river, 
was upon the theory that thereby "the Westermost" angle of Wat- 
kins point, as described in the Calvert-Scarborough report, might be 
ascertained. Michler states that "drawing the line" from " Smiths 
point " " across Smiths island," at or near the point where the said line 



63 

is said to pass, it will be seen that it intersects the prolongation of the 
Scarborough line very near the anchorage of the light ship, and where 
formerly existed the shore line." He states that the Southern ex- 
tremities of Smiths island have been always acknowledged to be with- 
in the jurisdiction of Virginia; and that with the exception of four or 
five acres of firm ground were sites for rude fishermen's huts. The 
other portions of these islands. South of lohat is considered the boun- 
dary line from Smiths point to Watldns point across the Chesapeake 
bay, consist of salt marshes." We have already given our view of 
the Ci^vert-Scarborough line, and of the charter line across the bay to 
Cedar straits. We think it highly probable that the idea that any 
part of Smiths island was within Virginia territory had its origin in 
the dispute over the true location of Watkins point, which commenced 
in 1663. The Virginia records show that Henry Smith, then of Ac- 
comack county, on a warrant for lands due him from Virginia, took 
up a tract of land on Smiths island, for which he obtained a grant 
from Governor Berkley, of Virginia, dated 6th October, 1667. This 
grant is recited in a deed, in the land records of Somerset county, 
Maryland, as follows, to-wit : " Doth grant unto ihe said Henry Smith 
one thousand acres of land, situate in Accomack county, being part of 
an island, beginning where the East and West line from Smiths island 
doth intersect, and bound on the Northern part therewith; running 
Southerly to the farthest extent of the said island; bound on the 
Eastern and Western sides by pa'-ts of Chesapeake bay and sunken 
marshes. The description of this beginning is so indefinite and vague 
that we supj)ose it would be impossible to locate the tract of land. 
This grant bears date the year before the Calvert-Scarborough agree- 
ment. The authority and power of Calvert and Scarborough were 
limited to the single duty " of meeting upon the place called Watkins 
point," and " thence to run the divisional line to the ocean sea." 
They had no authority to establish a line across the bay, or across 
Smiths island, and they made no attempt to do so. We have found 
no record that any divisional line was ever run across Smiths island 
under the joint authority of the two colonies or states; or that any 
such line was ever authorized to be run, or was run, by the direction 
of either Virginia or Maryland. Mere recitals in land grants to pri- 
vate individuals by either of the provinces or states, or calls in such 
grants for a divisional line between states, afiord no evidence to prove 
the existence or location of such divisional line as having been estab- 
lished by competent authority. Divisional lines between states can 



64 

be established only by treaty, compact, or some public charter or re- 
cord of a public act, establishing such line by competent authority. 
Maryland and Virginia grants, subsequent to 1668, of land, between Po- 
comoke river and the ocean, call for the divisional line between those two 
colonies. But it is the line marked and established by the Calvert and 
Scarborough compact, of which there is record evidence showing when 
and by what authority and by whom it was run and established. But 
there is no evidence of any such line across Smiths island. And not- 
withstanding the numerous depositions taken by the present joint 
commission in relation to several divisional lines, stones and bojinda- 
ries upon Smiths island, we confidently adhere to the statement con- 
tained in our report upon this subject to the Maryland general assem- 
bly in 1868, that " there is no certain tradition, so far as the com- 
missioners could ascertain, to fix the location of any divisional line 
between Maryland and Virginia across Smiths island. The testimony 
upon this subject was uncertain and onflictiog. Besides the aforesaid 
grant to Henry Smith, ther^ is on record, among the Virginia land 
patents, a grant dated 23d Oct., 1703, to Francis McKenny, Arcadia 
Welbourne, Daniel of St. Thomas, Jenifer and John West of a tract 
or tracts of " marsh and woodlands, it being contained on six islands, 
beginning at a marked lightwood stump standing near Nanticoke 
sound, thence by marked trees and over marshes and guts. West 1020 
poles to the main bay of Chesapeake, bounded on the West therewith 
on the South by Old Heme Island straits, and on the East by Nati- 
coke sound, and within this bound is contained 3,170 acres." The 
running of this West line across the North end of Smiths island, in 
1703, doubtless gave origin to the tradition testified to by Severn 
Bradshaw and others. This grant must have been obtained in io-no- 
ranee of Henry Smith's grant from Virginia of 1,000 acres, and of 
other previous grants from Maryland, covering all the lands and wa- 
ters within the limits of Smiths island, and on finding out the mis- 
take, the grant must have been abandoned, as we have found no evi- 
dence of any land on Smiths island ever having been held or claimed 
under it. The first Maryland grant on Smiths island is the patent of 
Cadger's island — 200 acres to Eobert Cadger, 23d September, 1665, on 
the Eastern shore, standing in the bay, and calls to run along a marsh 
belonging to Annamessex bay, by a line drawn South to the straits 
mouth, standing against Pocomoke river. This description is evident- 
ly widely erroneous. A deed for part of this island in 1746 describes 
it as lying South of Cadger straits, which are North of Smiths island. 



65 

The grant of Jones island "to Leonard Jones, 10th June, 1671, near 
Cadger islands 100 acres, and other grants from Lord Baltimore cover 
all the land North of the thoroughfare, comprising about one-third 
of the entire island. The next grunt is of 1,000 acres, surveyed for 
Col. Wm. Stevens, 7th June, 1G79, assigned to Henry Smith and 
patented to him 2d September, 1682, called Pitcraft, and described as 
' an island of broken woodland and marshes between Chesapeake bay 
'and an indraught of water called the sound, beginning on the bay at 
a tree near the mouth of Smiths thoroughfare, bounded thereby East- 
erly to the sound, and by the side of the said sound to the divisional 
line drawn between Maryland and Virginia, thence West by said divi- 
sional line to the bay-side ; and by the bay to the beginning. This 
tract called Pitcraft, and sometimes " Pitchcraft," is bounded on three 
sides by waterlines — the thoroughfare, sound and bay. But there is 
no distance given to any one of its lines, and nothing whatever to in- 
dicate where the divisional line West to the bay-side began or ended 
except that it started from the sound and extended West to the bay. 
Henry Smith removed from Accomac to Somerset county, Maryland, 
before 1693, and finding that Col. Stevens had, under a warrant from 
the land office of Maryland, surveyed and located a tract of land on 
Smiths island, calling for a divisional line between Maryland and Vir- 
ginia, he obtained an assignment of Stevens' equitable title and re- 
ceived a patent for Pitcraft. If Virginia had title to the 1,000 acres 
granted him in 1667, or any part of them, he thus became owner of 
all the island South of Smiths thoroughfare. His first sale and con- 
veyance of part of these lands was to John Tyler, of 200 acres, by 
deed dated 8th August, 1693, which recites the grant by Sir Wm. 
Berkley of 1,000 acres lying in Virginia, and the survey of Pitcraft 
by Col. Stevens, the assignment to Smith and the patent to him for 
1,000 acres of land called Pitcraft from Lord Baltimore. The deed 
conveyed to John Tyler a parcel of land, 200 acres, taken out of the 
said 2,000 acres granted by said Sir Wm. Berkley and Lord Balti- 
more, " being part thereof in Virginia and part in Maryland"; but 
there is nothing whatever in the descriptions or calls to indicate what 
part was in Virginia or what in Maryland. The deed is of record 
among the land records of Somerset county. 

Within the limits of this deed to John Tyler, was included the 
only high land fit for habitation on the Eastern side of the island. 
At the time of the deed, 1693, there were probably 5 or 6 acres of 
9 



this high land, which has been mostly washed away, leaving an ex- 
tensive shoal and about two acres of high land. 

At this place John Tyler is supposed to have built his dwelling; 
and from time immemorial it has been known and called " Horse ham- 
mock." The descendants of John Tyler continued to own it until 
1842, when, by deed, dated October 2d, 1842, Wm. Tyler and wife 
conveyed to Peter Evans "all that tract or parcel of land called 
'Horse hammock,' or by whatsoever name the same may be called, 
situate, lying and being on Smiths island, in Somerset county, in the 
state of Maryland," Peter Evans removed ^o Accomack county, and 
by deed, dated 3d October, 1857, conveyed Horse hammock to John 
W. Marsh, describing it as being in Somerset county, and contained 
within metes and bounds, beginning at a well known bounder stone 
lying at the sound side, about three-fourths of a mile to the North of 
the house, and thence running a West course across the marsh to Ty- 
lers creek; thence Southerly by the creek to a well known point called 
Horse hammock point; and thence up the sound side to the beginning. 
Marsh and wife, by deed of 30th January, 1866, conveyed same land, 
by same description, to Johnson Evans and John W. Evans; and 
John W. Evans and wife, by deed of May 11th, 1872, conveyed their 
interest, by the same metes and bounds, to Johnson Evans. 

All these deeds are recorded in Somerset county, and the place and 
its occupants have always been under Maryland jurisdiction as a part 
of Somerset county as far as we have been able to ascertain. The stone 
mentioned in these deeds could never have marked the beginning of a 
divisional line across the island between the two states, because the 
deed to John Tyler called for part in Maryland and part in Virginia, 
and all South of the divisional line would be in Virginia. 

But all question as to the jurisdiction of " Horse hammock" ceases 
as soon as it is settled that the line across the bay starts from Smiths 
point. According to the map of the United States coast survey a 
right line to Janes island light (even if that point should be decided 
to have been the place where the Westermost angle was) will leave 
Horse hammock point and a small part of South point marsh and 
Shanks hammock, with its ''4 or 5 acres of firm ground" and its half 
dozen families, within Virginia. And we think it cannot be questioned 
that a decision fixing "the extremest part of the Westermost angle of 
said Watkins point" at the Southwestern end of Janes island bar, 
would involve a correction of the mistake, or "undue proceeding," in 



67 

running the line in 1668, 5° 15" North of East, instead of allowing 
for that variation of the needle so as to "run an East line," as their 
report avers that they did, and which the charter required. We are 
informed that the act of the Virginia assembly, in force in 1668, re- 
quired surveyors, in running lines, to allow 5 degrees for variation of 
the needle. If this be so. Colonel Scarborough, an intelligent Virgi- 
niao, and surveyor general of Virginia under " his royal majestie's 
commission," would be presumed to have been aware of it. And if 
he knowingly caused or permitted the divisional line to be run with- 
out such allowance it was (to use the phrase of Governor Calvert on 
a former occasion) an " undue proceeding." In either case equity 
would rectify the error. 

The result would be a due East line running South of the light- 
house in Little Annamessex river, crossing Ape's Hole creek a short 
distance North of its mouth, and striking Pocomoke bay a short dis- 
tance beyond Ape's Hole creek; thence across Accomac county. South 
of Pitt's wharf and New church, and within a quarter of a mile of 
Horntown, and including in Maryland nearly all of Chingoteague 
bay. This line would deprive Maryland of a small part of her terri- 
tory and some valuable citizens in Little Annemessex neck, who on 
becoming citizens of Virginia, would have opened to them the oyster 
grounds, not only of Pocomoke bay, but of all other Virginia waters 
accessible to citizens of Accomac county. It would restore to Wor- 
cester county the twenty-three square miles, equal to 14,720 acres of 
land, now included in Accomac county in consequence of that error. 
But it is believed that such result is not desired by either side. It is 
natural that the residents in the vicinity of the line should prefer to 
remain, as fur as practicable, under the jurisdiction of the state to 
which they have been accustomed. 

To effect this, 

A Just and equitable compromise line ought to be adopted. 

It is eminently a fit case for the adoption of a just and equitable 
compromise line. We have entered into a somewhat elaborate exam- 
ination of the probable original location of the Watkins point of the 
charter. We have shown the large concession of Maryland territory 
by the agreement of 1668. That concession was perhaps inevitable, 
as there was no tribunal in that day to which Lord Baltimore could 
have resorted with hope of fairness (ind justice, 



68 

The retracing in 1858 of the line of 1668 disclosed that by an error 
in the original running of that line nearly 15,000 acres of land were 
improperly taken from Worcester county and included in the county 
of Accomac. 

It has been shown that in the compact of 1785 Maryland yielded 
the line from Cinquack and accepted Smiths point (five or six miles 
further North) as the starting point of the line across the bay. And 
in the controversy over the North and South branches of the Poto- 
mac, she yielded a claim which, in the judgment of some of her most 
eminent lawyers, was unquestionably legal and just. It is remarka- 
ble, too, that in the compact of 1785, while conceding that the right 
of fishing in the Potomac river shall be common to and equally en- 
joyed by the citizens of both states, Maryland omitted to secure, by 
express term?, reciprocal rights in the Pocomoke river. It is but just 
to Virginia, however, to state that until recently her laws regulating 
the taking of oysters and terrapins in the rivers Pocomoke and Poto- 
mac, secured to the citizens of Maryland equal privileges with citizens 
of Virginia in that regard. We regret to be compelled to say that 
the attempt of late years to exclude citizens of Maryland from equal 
privileges in taking oysters in Pocomoke sound, is a departure from 
that reciprocity, in that regard^ which had theretofore ever existed 
between these two states. We suppose that this departure originated 
in a misapprehension of the purpose of the preliminary survey made 
by Michler under instructions of the Virginia and Maryland commis- 
sioners in 1858. Their commission was to retrace and mark the 
boundary " between Smiths point, at the mouth of the Potomac; and 
the Atlantic." In the execution of this duty, it became obvious that 
further legislation would be necessary before the line could be estab- 
lished. Col. Lee reported that they "concluded to obtain, in addition 
to the evidence already at hand, the best local information by an ac- 
tual survey of the vicinity of the boundary, and to lay the whole be- 
fore their respective legislatures for their action thereon." But the 
leo-islation of Virginia seems to have proceeded upon the mistaken 
idea that the preliminary survey established a divisional line; whereas 
the survey revealed, for the first time, a serious error in running the 
line on which were "marked certain trees," and "other apparent 
marks and boundaries," while the residue of the line was left in ob- 
scurity and uncertainty. Col. Lee accounted for this, with 'much 
force, in his report, in the statement that "until recently all existmg 
maps of Maryland and Virginia erroneously placed the North shore of 



69 

Pocomoke bay so much too far North as in some degree to conceal the 
want of conformity with the provisions of the charter; as upon these 
maps the present boundary between Worcester, Maryhind, and Acco- 
mac, Virginia, if produced Westwardly from Pocomoke river to the 
Chesapeake bay, woukl pass for almost the whole distance over the 
Northern portion of Pocomoke bay." 

The present joint commission is empowered to adjust and settle 
this disputed line, subject to confirmation or rejection by the respec- 
tive states. And in view of the whole case, the Maryland commis- 
sioners respectfully submit to the Virginia commissioners the follow- 
ing line, to be established by compact between, that is to say — 

Beginning at low-water mark at the divisional line between the two 
states of West Virginia and Virginia, upon the Southwest coast or 
shore of the Potomac river; thence following the said river at said 
low-water mark, to all wharves and other improvt^ments now extend- 
ing, or which may hereafter be extended, by authority of Virginia 
from the Virginia shore into the said river beyond low-wat^r mark, 
and following the said river, around said wharves and other improve- 
ments, to low- water mark on the -Southwestern side thereof, and fol- 
lowing the said river in the same manner down to the Eastermost 
angle of Smiths point at the mouth of the said river Potomac, where 
it flows into the Chesapeake bay; thence by a right line to the centre 
of Cedar straits upon Tangier sound, near the Southern end of Wat- 
kins point; thence by a right line in a Southeasterly direction to the 
channel of Pocomoke bay or river nearest to Cedar straits; thence up, 
by and with the said channel of said bay and river to a point therein 
opposite to the place on the East shore of the said river ascertained 
by Mr. De la Camp, in 1867, as the beginning on said shore of 
the divisional line run and marked by Calvert and Scarborough in 
1668; and thence by and with said divisional line, as surveyed and 
laid down on the map madf^ by said Dela Camp for the joint commis- 
sioners in 1868, to the Atlantic ocean. The right of fishing and 
taking oysters in Pocomoke bay and river to be common to the citizens 
of both states, subject to concurrent regulations by the two states. 

ISAAC D. JONES, 
LEWIS L. WATERS, 
WM. J. AYDELOTT, 

Commissioners of the State of Maryland. 



B. 

On the Part of the Commissioners of Virginia. 



A succinct statement before the joint commission of the states of 
Maryland and Virginia, to settle and adjust their boundaries, made on 
the part or the commissioners of Virginia, at Kichmond, Va., Novem- 
ber 7th, 1872, citing some of the main evidence, and reserving the 
right of adducing t)ther evidence, if necessary, to support the claims 
of Virginia. 

I. 

" By letters patent granted by Queen Elizabeth to Sir Walter Ra- 
leigh, which bear date March 26th, 1584, she gave to him and to his 
heirs and assigns free liberty to search for and find such barbarous 
lands not possessed by any Christian people, as to him might seem 
good and the same to occupy and 'enjoy forever/ This grant was 
without any other definite limits/' See Hakluyt, vol 3d, p. 243; also 
Williamson's History of North Carolina, vol. 1st, p. 219. 

This first settlement made by the English io Virginia, and the first 
British settlement established anywhere on the continent of North 
America (see Hakluyt, vol. 3, p. 243) was abandoned by its founders 
A. D. 1590. See Smith's History of Virginia, vol. 1, p. 105. 

Queen Elizabeth, in 1584, named the whole country claimed by 
Great Britain, Virginia. See Hakluyt, vol. 3, p. 246. 

That queen died in 1603, and was succeeded by James I., and in 
the year 1606, he issued his letters patent to settle colonies in Virgi- 
nia. The first patent bears date April lOth, 1606. By these he di- 
vided that portion of Virginia which lies between 34° and 45° N. L, 
into two colonies and two districts of territory. In one of these. 



71 

called the First or Southern colony of Virginia, he authorized the 
London company, Sir Thomas Gates and others, his associates, to 
plant a colony wherever they mij^ht choose, between 34° and 41° N. 
L.; and he vested in them a right of property in the land, extending 
along the sea coast fifty statute miles on each side of the place of 
their first plantation, and reaching into the interior 100 statute miles 
from the sea coast. The other of these colonial districts, called the 
Second or Northern colony of Virginia, he allotted to the Plymouth 
company, Thomas Hanham and others, his associates. These he au- 
thorized to plant a colony wherever they might choose between 38° 
and 45° N. L., and he gave to them a territory of similar limits and ex- 
tent to that given to the first colony. He provided, however, that 
whichever plantation of the said two colonies should be last made 
should not he loithin 100 miles of the other that might first he estah- 
lished. These two colonies, at first called the London and Plymouth 
companies, soon dropped their names, and the name of Virginia, 
which at first was applied to both of the colonies, was retained by the 
Southern colony only, while the Northern colony was called New 
England. See Charters, Stith's History of Va., appendix No. 1. 

The London co. commenced its settlement first. On the 13th May, 
1607, the adventures of that company established their first habita- 
tion at the place named by them James City. See Smith's History 
of Virginia, vol. 1, book 3, ch, 1, p. 149. 

The first charter of April 10th, 1606, itself enables us to determine 
with great accuracy the limits of the grant made by it to the London 
company. If a meridianal line be drawn through James City and 
extend each way to the distance of fifty statute miles from it; if par- 
allels be drawn through the extremities of this meridian, and extended 
to the sea coast ; if 100 statute miles from thence be laid off upon 
each of these parallels; and if a straight line be drawn from the ex- 
tremity of one of them so determined to the extremity of the other, 
the diagram so to be constructed may be considered as a parallelogram 
or square, the base of which will be 100 statute miles, and its area 
10,000 square miles. 

Such a diagram so constructed, is in precise accordance with all the 
calls of this charter. This charter was granted before the country to 
which it was designed to apply was discovered, and the territory could 
not reasonably be confined to such limits, owing to its many discon- 
nected peninsulas. This was soon discovered by the explorations of 
Captain John Smith in the year 1608 (see Smith's History of Virgi- 



ma, vol. 1, book 3, clips. 5 and 6, and the map). Accordingly tke 
London co. applied to the king to alter this charter, and on the 23d 
May, 1609, he issued new letters patent of that date for this purpose. 

The Plymouth co. had then made no settlement, so that the whole 
country granted z^as as open to the new grant as it had been in 1606. 

Before this second charter was granted to the London company, the 
Northern headland, at the mouth of James river, was discovered, and 
called by the name it still bears — Point Comfort. Taking this known 
and established position as a starting point, the new charter granted 
to the company "all those lands, &c,, situate, lying and being in that 
part of America called Virginia, from the point of land called Cape 
or Point Comfort, all along the sea coast to the Northward 200 miles; 
and from the said Point or Cape Comfort, all along the sea coast, to 
the Southward 200 miles; and all that space or circuit of land lying 
from the sea coast of the precinct aforesaid up into the land through- 
out from sea to sea, West and Northwest; and also all the islands 
lying within 100 miles along the coast of both seas of the precinct 
aforesaid." See Stith's History of Virginia, appendix No. 2, p. 8, etc. 

As one of the purposes of this second charter is declared in it to 
be " to grant a further enlargement and explanation of the former 
grant of 1606," and as no other change in the mode of determining 
the new and enlarged limits from that required for determining the 
boundaries under the first charter, except that the precise point of 
Cape Comfort is substituted for James City, we are bound to adopt 
the same mode of determining the new limits which had been adppted 
and approved in the former case. Therefore if a meridianal line 
be drawn through the point of Cape Comfort and extended each 
way to the distance of two hundred miles from thence; if parallels 
be drawn through the extremities of this meridian and extended from 
sea to sea {i. e. from the Atlantic to the South sea or Pacific) the di- 
agram so constructed may be considered a parallelogram. The base 
of this will be the sea coast of the Atlantic, having a meridianal 
length of four hundred miles, bisected by the parallel of the point of 
Cape Comfort, and the altitude of this parallelogram will be the dis- 
tance from sea to sea. 

If we would know why the limits of the London company was ex- 
tended precisely two hundred miles to the North of the parallel of 
the point of Cape Comfort, curiosity will be satisfied by taking the 
trouble to calculate the difference of latitude between that parallel and 
the more Northern parallel of 40° In making this calculation allow- 



73 

ance must be made for the trifling error caused by the imperfection of 
the clumsy instruments used in 1G09 for making observations of lati- 
tude, as well as for the erroneous opinion then entertained as to the 
length of a degree of a great circle in English statute miles. We 
know now the exact quantity of each of these errors in our case; but 
it must be recollected that one of them (the last) puzzled Sir Isaac 
Newton almost a century after 1609. But, correcting the calculation 
in this way, we will so discover that two hundred English statute 
miles, measured along a meridian from the parallel of the point of 
Cape Comfort will carry us to the parallel of 40° North latitude; 
which last parallel was then made the common boundary between the 
two great districts of Virginia and New England. (The foregoing 
condensed statement is from Report No. 457, 28th Cong., 1st Session, 
H. Reps., " Issue of Scrip," etc., to accompany bill H. Reps. No. 353, 
made by Hon. E. W. Hubard, from the Committee on Public Lands, 
partly written by L. W. Tazewell, Esq., and partly by B. W. Leigh, 
Esq., and partly by Mr. Hubard. See his letter.) 

This clear view of the grants and definite delineation of the terri- 
tory granted, make manifest several cardinal points to be remembered 
throuo;hout the discussion of the true boundaries of Virginia : 

1st. The grants speak hy lines of latitude, by extent of measure- 
ment by miles, and not hy natural objects, such as places, rivers, &c., 
except as to the initial points of James City and Cape Comfort. 

2d. They give no courses of lines, except Northward and South- 
ward from the initial point, and West and Northwest from sea to sea; 
and this applies to the territory granted, and not to the lines by which 
it was bounded; for the first grant was made before the discovery of 
the territor}", and the second enlarged merely the first. 

3d. The first grant overlapped the territories of the two companies 
three degrees of latitude, from 38° to 41° North latitude; and the 
second made the 40th degree the Southern limits of New England 
without granting to the London company, sole, up to 40th ° North 
latitude. 

4th. The two lines of 38° and 40° North latitude, thus became 
cardinal points of boundary, and must be observed — the first as the 
Noi'iliern limit of Virginia, and the last as the extreme Southern 
limit of New England. 

5th. And these facts and the 100 miles distance from one settle- 
ment to the other, enjoined by the charters, show the way the door was 
opened to the king for the prerogative grant to L«rd Baltimore. 
10 



74 

6th. Smith's Map laid down the line of 38° N. L. far South of 
where it is now known to be, but not far from Smiths point, showing, 
as will hereafter appear, that the intent and meaning of the grants by 
Charles 1st on 20th June, 1633, to Cecilius Calvert, Baron of Balti- 
more, in Ireland, was to bound Maryland on the Western shore of the 
Chesapeake bay by the river Potomac, and on the Eastern shore 
of that bay bj the parallel of 38° N. lat. on the South, that degree 
of lat. being the extreme limit North to which the territory of the 
London co. extended originally in sole right, and the space between 
38° and 40°, being comparatively unsettled, except by the Indians, 
owing to the clause which put the two companies 100 miles apart. 
And, as will appear hereafter, the Watkins point named in the char- 
ter to Lord Baltimore as the initial point of bounds on the Eastern 
shore, was then known to be under the line of 38° North latitude. 
See "Considerations of Lord Baltimore's Patent, both in Law and 
Equity,'' and Calvert and Scarburgh's report in 1668. And to prove 
that Lord Baltimore himself tacitly admitted that his extreme boun- 
dary South, on the Eastern shore, was 38° N. L., see his own me- 
moir of his conference with William Penn, in which Penn again and 
again so asserted to him without contradiction by him, when he was 
claiming North to 40° N. L. But especially note No. 117 of the De 
Jarnette papers, August 19th, 1682, being the letter of the king re- 
minding Lord Baltimore that he had but 2° N. L,, South of 40° N, L. 

Such was the original limits of the colony of Virginia, under the 
charters of the London company and the grant to Lord Baltimore. 

II. 

The charters of the London company (there were three) were can- 
celled by a judgment of the court ot king's bench, pronounced in a case 
of quo warranto depending in that court at its Trinity term in the year 
1624. But this took away only the monojpoly of the company and 
the power of its government over the colony, which were vested in 
the company by the charter, ivithout affecting at all the ter7'itorial 
limits or other rights of the colony itself ; and the only change was 
from the proprietary government of a trading company to a royal 
government over the same dominion and colony. See Hubard's Re- 
port, and see Chalmers' Annals, p. 63. The colonial legislature opposed 
the restoration of the charters to the company in 1642. See sec. 1, 
Hen. Stat, at Large, pp. 230^ 236; see also answer of Governor Sir 



75 

Wm. Berkely in 1671 to one of a series of statistical inquiries of the 
commissioner for foreign plantations — "What are the bounds and 
contents of the land within your government ?" 2 lb. 514. See also 
the opinion of the Supreme Court United States in Johnson vs. Mc- 
intosh. Judge Marshall said: "This (the charter of Virginia of 
May 1609) was annulled so far as respected the rights of the com- 
pany, by the judgment of the court of king's bench on a writ of quo 
warranto; hut the whole effect alloiued to this judgment was to revest 
in the crown the powers of government and the title to the lands 
loithin its limits" 8 Wheaton, 578. The privileges of free denizens, 
or persons native of England, and the titles of proprietors of lands in 
free and common socage guarateed by the charters, survived their re- 
vocation; and property in the territory survived to the grantees or 
patentees. See Hubard's Report, p. 20. 

The United States have recognized the right of Virginia to the 
lands included in the limits of these charters, and so has Mar3'land 
by accepting the deeds of cession from Virginia of her Northwestern 
territory on the conditions imposed by herself, and the constitution of 
the United States recognizes and ratifies the contract of this cessioa 
acknowledging title in article 6, clause 1. Virginia does not claim her 
title under the charter. She claimed it as a self-created body politic 
and corporate, which in 1776 proclaimed itself a free, sovereign and 
independent state. Self-created and self- sustained, after 1776, she 
claimed nothing under these charters, which were necessarily abro- 
gated by the very fact of her independence. She refers to them con- 
stantly, as she would to any history, geographical treatise, or authen- 
tic map, as the best evidence the nature of the case permits, to prove 
what are the metes, bounds and extent of the territory which she 
claims. She refers to them as she does to the grants made to others — 
of Maryland to Baltimore, of North Carolina to Lord Clawendon and 
others, and of Pennsylvania to William Penn — as proofs of what 
were and are the limits of that region in America called Virginia. 

Virginia claims by virtue of her declaration of sovereignty, made 
in June, 1776, the truth of which declaration, then made, was after- 
wards (1783), recognized by the king of Great Britain, the former 
sovereign of this region. See Hubard's Report. Whilst a colony, in 
1634, Virginia asserted her claim, under the charter, to the territory 
of Maryland, and the king, in council, did not decide against that 
claim, but left her to her remedy at law. See the McDonald papers, 
vol 2, page 135, S. P. 0. col., vol. 6. 



76 

In all countries governed by the common law, precedent is of force 
to make law — constitutional as well as municipal law; in all civilized 
countries, without exception, prescription seems title. The precedent 
of the charter of Maryland, in effect, established the right of the 
crown to dismember from Virginia any part of her territory, at its 
discretion, without hei consent; hut it in nowise affected the right of 
Virginia to such territory ivithin her ancient limits as had not been 
dismembered from her. 

The charter was annulled so far as respected the rights of the cor/i- 
jpany, not in respect to the rights of the colony. 

The powers of gov e^mment— the same powers which the charter had 
vested in the company as proprietor — were re-vested in the crown; the 
same title to the lands within its chartered limits, which the charter 
had vested in the company, was re- vested in the crown. 

The charter, so far from being annihilated, was recognized. The 
vacant lands in the colony were henceforth crown lands in the king's 
dominion of Virginia, and the extent of that dominion was only to be 
ascertained by the territorial limits described in the charter. Those 
lands could only be acquired by grants from the crown, according to 
a system of land laws enacted by the coloniallegislature, and through 
the instrumentality of the colonial government. See Hubard's Re- 
port. The argument drawn from the judgment against the London 
company, in 1624, if of avail to prove that Virginia was not thence- 
forth entitled to claim under the charter of May, 1609, would prove 
too much. It would prove that she had no charter at all, for she 
never pretended to have any other; it would prove that Virginia, in 
her political capacity, had no title to any territory whatever; not only 
no title to the Northwest of the Ohio, or West of the AUeghanies, 
but no title to the island of Jamestown, or the city of Williamsburg, 
or Old Point Comfort. See Hubard's Report — part written by B. W. 
Leigh. 

But let her colonial existence and form of being be whatever it was, 
the colony became a sovereign state in J une, 1776, and thereby be- 
came sovereign over her ancient limits, and the right of eminent do- 
main is independent of all colonial charters or royal patents, and is as 
supreme as royalty itself. 

III. 

Oa the 19th August, 1629, Lord George Baltimore addressed to 
Charles I., a letter, now in the state paper office of Great Britain, en- 



I 



77 

(lorsed "My Lord of Baltimore to ye king — 9th August, 1G29," (see 
2d vol. of the McDonald papers, page 24,) complaining of his colony 
in New Foundland, proposing to remove himself "with some 40 per- 
sons to his majesty's dominions in Virginia," and praying for a grant 
of "a precinct of land with such privileges as the king, his father, 
was pleased to giant him in New Foundland." 

The king replied by letter to Lord Baltimore, dated November 22d, 
1G29, S. P. 0., Colonial No. 38, vol. 5, (see the McDonald papers, 
vol. 2d, p. 1,) advising him to desist from furth*^r proceeding and to 
return to his native countrie with his first conveniency, and promising 
him much favor. The letter to the king was accompanied by several 
papers, the first of which is endorsed " Demands, with reasons for 2 
degrees of Mr. Attorney General, 10th February, 1629." (McDonald 
papers, vol. 2, pp. 24 to 34 inclusive.) 

In October, 1629, Lord George Baltimore went to James city (now 
Jamestown) in person. See last page of vol. 1st, Henning's Statutes 
at Large, as to the pilloring of Thom. Tindell for insulting and threat- 
ening Lord Baltimore, and the "letter from the commissioners of Vir- 
ginia to the lords of the privy council" found in S. P. 0., Colonial 
No. 39, Great Britain, announcing Lord Baltimore's arrival in the 
colony, in the beginning of October, 1629, from New Foundland, and 
that he was willing to reside with his whole family in Virginia, though 
his intention was to settle Southward at first; that they were willing 
to receive and entertain a person of his high rank. Whereupon they 
tendered the oaths of supremacy and allegiance to his lordship, and 
some of his followers, who, making profession of the Romish religion, 
utterly refused to take the same; that his lordship then offered to 
take '•an oath — a copy of which was inclosed — but they strictly ex- 
acted the oath required by King James L; and they implored that no 
Papists should be suffered to settle their abode in the colony of James 
city." 

By the third charter ot the colony. Papists were prohibited from 
settling in its limits; and the oaths of supremacy and allegiance, 
which Lord Baltimore declined to take, did drive him to settle North 
of 38° N. L., the extreme Northern sole limit of the London company 
by the original grant. As stated in the paper — " Considerations of 
Lord Baltimore's Patent," &c., &c. — already referred to, he went to 
Watkins point, lying on the 38° N. L., on that line where the West- 
ern shore boundary, the Potomac, mouthed, and which he represented 
to be settled by savages, and to be vacant between the Plymouth and 



78 

London companies. See bis own map (Herman's) and Bowen's 
Map. See also McDonald papers, vol, 6, 38th instruction by the 
King Charles II. to Lord Culpeper, p. 33 or 35 and p. 132-135. 
See oaths of supremacy and allegiance changed, Id. vol. 7, pp. 317 
319; alarm about war Avith France and Indians, and course towards 
Catholics, pp. 205, 206, 363. But see the British " State Papers," 
Colonial Entry Book, vol. 52, p. 88-89, August 19th, 1682; letter 
from the king to Lord Baltimore. The line from Watkins point, al- 
ready settled, 2° N. lat. South of 40° N. L., fixed by the charter for 
Northern limits and named. 2° measured Southward, gives Lord Balti- 
more to 38°. See 117 of the Dejarnette papers. This supports Penn's 
repeated asseveration without contradiction by Lord Baltimore at the 
time, that he knew his boundary on the Eastern shore did not extend 
South of 38° N. L. See Dejarnette's papers, Lord Baltimore's own 
account of his conferences with William Penn. And this line, thus 
settled, did start almost exactly where 38° was then supposed to be, 
and ran upon that line, varying from it only the number of degrees 
(5°) allowed by the law of Virginia, and it was run from one natural 
object on the bay side of the E. S. peninsula, Watkins point, to an- 
other natural object on the sea side thereof — Swansea Gut creek — 
"■ over the Pocomoke river." 

Lord Baltimore could not settle South of 38°, N. L., without taking 
the oaths of allegiance and supremacy. See Hen. Statutes at Large 
act 28, 1631-32, against Catholics; and Id. against Quakers, 
1659-60, 1 H. Stats, at Large, pp. 532, 533. 

IV. 

The immense territory of the London company was dismembered — 

1st. By the grant of Maryland to Cecilius Calvert, Baron of Balti- 
more, in Ireland, in 1633. 

2d. By the grant of North Carolina to the Earl of Clarendon in 
1665. 

3d. By the grant of Pennsylvania to William Penn in 1681, and 
the grant to him of Delaware. 

4th. By the treaty between Great Britain and France, called the 
treaty of Paris, in 1763. 

5th. By the constitution of Virginia, June 29th, 1776. 

6th. By her deed of cession of her Northwestern territory, March 
1st, 1784. (See Hubard's Report.) 



79 

7th. The compact between her and Maryland in 1785 refers merely 
to navigation, fisheries and the jurisdiction over criminal offences, and 
not to boundary. 

And of these grants on settling and adjusting the boundaries be- 
tween Maryland and Virginia, we need look to the Maryland and 
Pennsylvania grants, to the treaty of Paris, to the first constitution 
of Virginia, and to the cession of her Northwestern territory by Vir- 
ginia to the United States. And these are affected materially by the 
revolution in England in 1649; by the surrender of the colonies of 
Virginia and Maryland to the commonwealth and to Cromwell; by 
the grants ad interim to Lord Hopton, &c.; by the restoration of the 
proprietary rights of Lord Baltimore by the Charles II. in 1669; by 
the privation of his charter in 1790 by William and Mary; and by 
his restoration to his rights in 1715 by George I. Lord Baltimore 
never had quiet title to Maryland except from 1715 to 1776. But, un- 
doubtedly, at the end of the colonial state of the British colonies in 
North America, Maryland had a separate and independent existence, 
as a sovereign state, and the question recurs — What then were her 
limits ? That question we will examine " in limine." 



Without going into a critical analysis and translation of the char- 
ter to Cecilius Calvert — Lord Baltimore — in 1633, it may for the pre- 
sent be conceded, for the argument, that whatever were the bounda- 
ries fixed between the two colonies of Maryland and Virginia by the 
charter of Charles I. to Lord Baltimore, they were greatly changed 
by the "articles of surrender of the whole country of both colonies to 
the commonwealth and Cromwell on the 12th March, 1651." 

We have seen that Lord Baltimore's charter or grant was disputed 
by Virginia at once, and the legal question has never been decided. 
The grantees of land from Virginia prior to his grant, such as that to 
Claiborne of Kent island, disputed his proprietary rights to their 
lands from the beginning. 

In the midst of these controversies, the revolution of 1649 occurred 
in Great Britain. 

The governor. Sir William Berkely, and the council and burgesses of 
Virginia, were loyal to Charles II. Charles I. was beheaded the 30th 
January, 1649. From that period the commonwealth in England 
commenced; and it continued, under different modifications, until the 



80 

restoration of Charles II. in 1660. Oliver Cromwell was declared 
protector ©n the 9th January, ]654, and died on th? 13th September, 
1658. His son Kichard succeeded him, but abdicated in 1659. On 
the dissolution of the monarchy in England, doubts existed in this 
country whether the powers of the governor and council, and of all 
the other officers of the government deriving their appointments from 
them, were not extinct. This gave rise to one of the provisions of 
the first act of the grand assembly held at James City on the 10th 
October, 1649, which made it highly penal to maintain such doctrine. 
The principle was, however, solemnly recognized by the first article 
of the convention entered into between the commissioners of the par- 
liament of England and the governor, council and burgesses of Vir- 
ginia, on the 12th March, 1651. That convention annihilated the 
royal government and prerogative in Virginia. See Henning's Statutes 
at Large, vol. i., p. 358, and see note. 

The first act of the assembly after the regicide proclaimed the trea- 
son of those who tried and convicted and decapitated the king; as- 
serted the royal government as still continuing and existing; and 
declared all defenders of the execution of Charles I. accessory to the 
death of the king after the fact; and to doubt the right of succession 
of Charles II. was made high treason, and it was made equally high 
treason to propose a change of government or to doubt the power of 
the governor and government of Virginia. See Id. pp. 359-60-61. 

By act III, of this assembly it was 

Enacted, That the inhabitants which are or shall be seated on the 
South side of the Potomac river shall be included, and are hereafter 
to be accounted within the county of Northumberland. 

By the articles "at the surrender of the countrie," agreed on and 
concluded at James City, in Virginia, for the surrendering and set- 
tling of that plantation under the obedience and government of the 
commonwealth of England, by the commissioners of the council of 
state, by authority of the parliament of England, and by the grand 
assembly of the governor, council and burgesses of that "countrye," 
it was solemnly agreed and concluded — 

4th. " That Virginia shall have and enjoy the ancient bounds and 
lymitts granted by the charters of the former kings, and that we shall 
seek a new charter from the parliament to that purpose against any 
that have intrencht upon the rights thereof." Herein, by a power re- 
cognized as sovereign and absolute, both de jure et de facto, was all 
royal gov't, and authority annihilated and the ancient chartered limits 



81 

of Virginia restored to her. Whether she ever sought a new charter 
from tlie parliament or not, the royal grant to Lord Baltimore to any 
of her chartered limits was annulled by actual convention and treaty, 
higher and more authoritative than any judgment of the king's bench 
iu 1624, which enabled the king to dismember her territory or to " in- 
trench upon it." See 1 Hennings Stats, at Large from p. 363 to p. 
373 inclusive. Here it is seen that there was an entire revolution of 
gov't and its powers and authorities; that it was by a rightful and ac- 
knowledged gov't, destroying all royal prerogative, and by treaty re- 
storing Virginia to all her original territory; and that a provisional 
gov't was organized for the colony and followed this revolution. No- 
thing could be more conclusive in political history than that, if king's 
bench took away the rights of the London company, the common- 
wealth and Cromwell and their commissioners took away Lord Balti- 
more's rights as a proprietary gov. of Maryland. The 3d charter of 
the London company prescribed that the oaths of allegiance and con- 
formity should be taken in Virginia. The king himself could not 
dispense with them; and Lord Baltimore declined to take them. He 
evaded them by betaking his settlement to that neutral and common 
territory between 38° and 40° N. L., lying between the Plymouth and 
the London co. settlement. These two degrees, embracing about the 
distance of 100 miles, which the two companies were bound to keep 
between their settlements. Virginia had already granted patents to 
numerous settlers who had seated " dividents " in all that region. 
She had commissioned Wm. Claiborne, a surveyor, and sent him to 
survey the planters' lands and make a map of the country ; to make 
discoveries along the coast and find a fishery between James river and 
Cape Cod. He and his followers settled mainly at and near Kent is- 
land, high up the Chesapeake bay. The charters had expressly pro- 
vided '' that all the lands were to be had and enjoyed in the country 
of Virginia by British subjects within the same, according as in the 
like estates they were had and enjoyed by the laws within the realm 
of England. The individual titles granted by Virginia before the 
grant to Lord Baltimore by the king, could not be disturbed by the 
Maryland charter. They were titles in free, and common socage were 
vested, and could not be annulled by the king himself Lord Balti- 
more invaded or intrenched upon their private titles, and that was the 
cause of Claiborne's rebellion against Lord Baltimore's proprietary 
gov't. 

The great massacre occurring in 1624, and the London co. being 



convulsed by violent factions, the charter was annulled by quo war- 
ranto; Virginia became a royal province, and the company expired 
just ten years before Lord Baltimore obtained his grant and began to 
govern Maryland. But by that time Virginia had enacted laws for 
the registry of births, marriages, and burials by church ministers and 
wardens, and there wex^i parish records. That was one test of juris- 
diction and boundary. In 1634 the country was divided into 8 shires, 
which were to be governed as the shires in England ; their names 
were James City, Henrico, Charles City, Elizabeth City, Warwick 
Eiver, Warros Kyoake (now Isle of Wight, &c.), Charles River, Ac- 
cawmack, and lieutenants were appointed the same as in England; 
and, as in England, sheriffs were elected, and sheriffs and baliflfs where 
need required. See 1 Hennings Stats, at Large, pp. 233-34. See 
also a copy of the rolls. Again, as early as 1623-24, surveys for pri- 
vate planters' " dividents " were provided for and were to be recorded. 
See 1 Hen. S. at Large, p. 125. Edmund Scarborough had been re- 
peatedly elected county lieutenant of Accomack, and was surveyor 
general of Virginia, when the boundary disputes first began between 
the two colonies. And from the beginning of the London co. colony the 
established church of England was in full authority in Virginia, and 
the church divisions into parishes were arranged, and there were then 
complete records of vestries. Conformity was strictly enforced, and 
non-conformists were compelled to depart the colony. The laws 
against Papists and Quakers were severely tyranical and rigidly exe- 
cuted. All these laws and their effects were so many tests of what 
settlements and population belonged to Virginia. And thus, before 
the grant to Ld. Baltimore in 1633, the Virginia colony was com- 
pletely organized, and its affairs administered in a defined territory. 
Lord Baltimore disturbed those settlements. At once he assumed to 
grant and govern the lands of those seated as on Kent island within 
his admitted limits, denying the prior individual titles under Virginia 
grants, and he began to seat settlers beyond his limits, especially West 
of Pocomoke river, near its mouth on the Eastern shore. The rea- 
son why the refugees from Virginia took their settlements there, will 
be shown hereafter. 

William Claiborne stubbornly resisted the proprietary claims of 
Lord Baltimore from 1633 to 1635 ; driven out of Maryland at last, 
he escaped to Virginia, but was arrested and sent to England to be 
tried for rebellion. The provisional legislature of Maryland having 
declared against the proprietary claims of Lord Baltimore, Claiborne 



83 

re-appeared in rebellion against Lord Baltimore in 1644, and the latter 
in turn was obliged to seek refuge in Virginia, and never returned to 
Maryland until about 1646, when he put down the rebellion, and died 
the next year. His successor remained in disturbed possession until 
1649, when lo ! in 1651, William Claiborne again appeared as one of 
the commissioners to demand the "surrender of the whole country" 
to the commonwealth of England in its second year. Not only was 
Virginia guaranteed " the ancient bounds and limits granted by the 
charter of the former kings," but also that all the patents of land 
granted under her " collony seal, by any of the preceding governors, 
shall be and remain in their full force and strength." She was granted 
free trade and freedom from all taxation. 

The commissioners engaged for the parliament and the governor 
and council and burgesses for the whole colony on their respective 
parts. The "commissioners of parliament were Richard Bennett, 
William Claiborne and Edmund Curtis. These articles were signed 
and sealed by the commissioners of the council of state for the com- 
monwealth of England the 12th March, 1651, and they then proceeded 
from Jamestown forthwith to reduce Maryland, and in 1652 they es- 
tablished for her a provisional government — Bennett, governor, and 
Claiborne, secretary. From 1652 to 1654 they entrusted the govern- 
ment of that colony to a " Board of Ten." The assembly at Patux- 
ent deprived the Catholics, notwithstanding the " Toleration Act," 
of all franchises, and a civil war ensued and lasted until the year 
1657. It was only by the tact of Fendall that the proprietary gov- 
ernment was re-acknowledged as late as 1658. And after Oliver 
Cromwell's dt'ath, the colonial authorities of Maryland herself asser- 
ted the supreme authority of the people, and that the allegiance of 
the colony was due to the king. For these general facts of history, 
see Holmes' University Series, and No. 142 of the DeJarnette papers — 
" Lord Baltimore's case uncased." Thus it may well be claimed 
that the colony of Maryland in turn became an imperial colony by 
treaty with the commonwealth of England, and that treaty was never 
disturbed or modified by any absolute act of Oliver Cromwell. If 
kings bench in 1624 could open the way to dismember Virginia by 
royal grant to Lord Baltimore— a fortiori — the revolution of 1649, 
and the " surrender of the country" in 1651, and the articles agreed 
and concluded by the commonwealth's commissioners with governor 
and council and burgesses of Virginia could restore the latter to her 
ancient limits — Maryland and Virgiriia both became imperial prov- 



84 

inces of the commonwealth of England, and were both within the 
prerogative of imperial grant. A consequence of this restoration of 
the limits of Virginia was, that she deemed herself as having no 
longer any issue of boundary to settle with Lord Baltimore : and, 
accordingly, at a grand assembly held at James City by prorogation 
from the 10th March, 1655, to the 1st December, 1656, it was or- 
dered : " That letters be sent unto Col. Samuel Matthews and Mr. 
Bennett, that in respect the difference between us and the Lord 
Baltimore, concerning our bounds, is as far from determination as at 
first, they desist in that particular until further order from this 
country." 

They wisely desisted, knowing, doubtless, that the question of 
boundary would or could probably be settled without further contro- 
versy with Lord Baltimore. And so far as the Potomac and its islands 
and shores are concerned, its boundary was settled by — 

VI. 

The grant of the Northern Neck of the colony of Virginia lying be- 
tween Rappahannock and Potomac rivers. 

A petition, dated July 28th, 1639, addressed to the lords commis- 
sioners for foreign plantations, by the governor and company of Lon- 
don for the plantation of the Somer isles — now Bermuda isles — see 
map of 1763, (see No. 56, State papers, colonial, vol. 10, No. 30, 
with inclosure — shows that company was incorporated about the year 
1621, and the inhabitants were not able to subsist there, and sought 
another place. That an agreqjnent had been made between the com- 
pany of Virginia and the petitioners, when the latter purchased the 
Somer isles from the former ; that the petitioners should receive a 
large proportion of land in Virginia, and they prayed for a grant of 
land situate and being betwixt the two rivers of Rappahannock and 
Patowmeck. 

This petition shows that the Northern Neck, as it is now called, 
was not then inhabited by English subjects, and that no grant thereof 
" had yet passed to any." This, with the inclosed paper, was sub- 
mitted to the lords commissioners on the 1st August, A. D. 1639. 

Then, August 3rd, 1663, came a letter from Charles 11. to the 
governor and council of Virginia, reciting that he had granted to 
Henry Lord Jermine, Earl of St. Albans, and to Ralph Lord Hopton 
and others, in the first year of his reign, (he never counted the years 



85 

of the commonwealth or Cromwell, and therefore he meant in 1649, 
'50, or '50, '51,) '' all that tract, territory or portion of land in 
America, bounded by and within the heads of Tappahannocke alias 
Rappahannock and Quiriough or Potomac rivers, the courses of these 
rivers, and Chesapeake bay, together with the rivers themselves, and 
all the islands within the banks of the said rivers." And it recites 
that the Earl of St. Albans, Lord Berkeley, Sir Wm. Morton and 
John Fritheroy, assignees of tiie said Lord Hopton, being the survi- 
ving patentees and parties interested, had granted and demised to Sir 
Humphrey Hoke, Knt., and others, the said tract, or territory, for a 
certain number of years, &c., &c.; and reciting that his letters patent 
had miscarried, and ordering the governor, council and burgesses of 
Virginia to give these patentees aid and assistance. See the De Jar- 
nette State papers, No. 80, Colonial-Virginia, 59, No. 19, August 
3rd, 1663. 

And in the Public Record Office of England, Chancery Patent 
Roll 21, Car. II., dated May 8th, 1667, came the patent or grant 
from Charles II., confirming " letters patent under the great scale 
of England, bearing date at St. Germines, the 18th day of September, 
in the first year of our reigne," unto " Ralph Lord Hopton, Henry, 
Earl of St. Albans, &c., &c., their heirs and assignees foreve*-, all 
that entire tract, territory or parcell of land, situate, lying and being 
in America, and bounded by and within the head of the rivers of 
Tappahannock, alias Rappahannock and Quiriough or Pattawmack 
rivers, the courses of the said rivers as they are commonly called or 
knowne by the inhabitants and description of those parts and Chesa- 
peake bay, together with the rivers themselves. And all the islands 
within the banks of those rivers. And all woods, <fec. This recites 
the terms of the grant to Lord Hopton made in the 1st year of Chs. 
II. reign, in 1651, and then recites that whereas the said Ralph Lord 
Hopton, John Lord Culpeper, Sir Dudley Wyatt and Thomas Cul- 
peper, being all since dead, and the said Ralph Lord Hopton having 
in his life time, by good and sufficient conveyance and assurance in 
the law convied and assured all his estate and interest in the said 
p'messes unto John Fretheroy, Esq., and his heires, all the said tract, 
territory, and portion of land," &c. 

"And whereas the said Henry Earle of St. Albans, &c., by their 
deed, &c., bearing date the nyne and twentieth day of June now last 
past, &c., have granted and surrendered to us the said tract, &c., with 
the aforesaid letters, patents to be cancelled, to the intent that we 



86 

would be gratiously pleased to grante them new letters pattents 
thereof, &c., &c. : Now know ye, that we for, &c., have granted and 
confirmed, &c., unto the said Earle of St. Albans, John Lord Berkeley, 
Sir William Morton, John Fretheroy, their heirs, &c., all that entire 
tract, territory or parcel of land, situate, lying and being in America, 
and bounded by and within the head of the rivers of Tappahannock 
alias Rappahannock and Quiriough alias Patawmack river — courses of 
said rivers, &c., together with all the rivers themselves and all the 
islands within the banks of those rivers, &c." 

And after full and complete proprietary rights and powers are 
granted, and a covenant to supply all future defects, it proceeds : 

" Provided always, &c., that these presents or anything herein, &c., 
shall not extend or be construed to extend to infringing, make voyd, 
or otherwise prejudice any contracts or grants, &c., whatever, hereto- 
fore made or granted by the governor or governors and council of Vir- 
ginia, of the premises, &c., &c., made before the 29th day of Sep- 
tember, in the 13th year of our reigne." 

And these grantees were prohibited from acting or intermeddling 
in the military affairs or forces in the territory, "or with the govern- 
ment or command of any of the castles, forts, &c., thereof, without 
the order, authority and command of the governor and council of 
Virginia for the time being, but the same shall remain, continue and 
be in the governor and council of Virginia, &o.; and that the gov- 
ernor, councill and assembly of Virginia for the tyme being shall have 
full power and authority to lay any tax and impositions in and upon 
the said territories hereby granted." 

In a word, these grantees and the inhabitants in this territory were 
" in all things made subject and obedient to such lawes and constitu- 
tions as are or shall be made by the said governor, council and assem- 
bly for or concerning the said colony or gov't thereof," &c. 
■^' This grant was made by writt of privy seal, at Westminster, the 
8th day of May, the one and twentieth year of the reign of Charles 
11,^ counting from the death of Charles I. would be 1668-69. Also 
see No. 94 of the De Jarnette papers, dated "At Whitehall," No- 
vember 19th, 1675. 

" Present — The king's most excellent majestic in councill." 

The lords of the committee on foreign plantations presented to his 
majesty in council a report touching a grant to be past unto his ma- 
jesty's subjects of Virginia. The petition of Francis Morryson and 



87 

.others, agents for the governor, council and burgesses of the country 
of Virginia and territory of Accomac. 

The report of the committee aj)proved the petition, and it was con- 
firmed by the king in council, November 19th, 1675, authorizing the 
governor, council and commonalty of Virginia to purchase the lands, 
&c., contained in grant to the Earl of St. Albans, &c., &c. 

Under these and various other papers, and laws passed to that end, 
the colony of Virgiuia became possessed of the entire territory be- 
tween the Rappahannock and Potomac rivers, embracing all the 
islands and waters of said rive's, and has ever since exercised juris- 
over the same. 

Not only by successful revolution and sovereign power, de jure et 
de facto, was Virginia, by the treaty-making power itself, restored to 
her ancient limits, but her boundary and jurisdiction on the Potomac 
river was fixed by royal grant as well as by the articles of surrender 
to the commonwealth. 

Lord Fairfax fixed the initial mark of boundary at the head spring 
of the North branch of the Potomac under his title, and prevailed 
against thre lord proprietor of Baltimore, who claimed not only the 
whole of the Northern Neck of Virginia, but to the South bank of 
Acquia creek. See the map of his own "achievement," with his coat 
of arms, in Ogleby's History. And Lord Fairfax, under Virginia 
laws, always claimed the Potomac river and its islands, and Virginia 
always exercised jurisdiction in various ways over them, as will be 
hereafter shown. See the surveys by Lord Fairfax, hereto appended. 

Indeed, it was always a matter of dispute whether the original 
grant to Lord Baltimore could reach as far West as the head spring 
of either branch of the present Potomac. The river to which the 
name of Potomac was given was the Quiriough. That river, at the 
date of the grant to Lord Baltimore in 1633, was not known higher 
up than its falls; and the country West of the Blue Ridge was not 
explored, certainly not settled, for a century after that date. See 
Kercheval's History of the Valley of Virginia. The North branch 
of the Quiriough was the Cohongaroota, and the South branch was 
called the Wapopocomo. If the name Potomac in the Baltimore 
grant meant the Quiriough, as undoubtedly it did (see the alias 
named in the grant to Lord Hopton), then the line of Maryland run- 
ning by the line of 40° N. L. until it came to the meridian of the 
most Western head spring of the Quiriough would have to stop far 
East of the meridian of the head spring of the Cohongaroota. But 



Lord Fairfax and Lord Baltimore fixed the boundary by the Fairfax; 
stone, as found by Michler, And Michler's report showed a curious 
result of survey in demonstrating, perhaps, what the words "ulterio- 
rem, flumines, ripam," in Baltimore's grant, meant. Michler, in 
making his survey, could not of course begin to run a line South 
from the parallel of 40° N. L. until he first found the head spring, 
the meridian of which he was to run. He searched for and found the 
spring and stone marked by the Fairfax initials, and then run its me- 
ridianal line North until he crossed or came to the parallel of 40° N. 
L. In doing so he found that within four or five thousand yards 
North of the stone and spring his meridian line struck the Potomac 
river, there running Northwest. Instead of running South from the 
parallel of 40° to the spring, he was running North from the spring 
to the parallel — exactly the reverse of the course required by the 
grant. The grantor, as it were, standing on the parallel of 40°, gave 
a line inclining South from the meridian of the spring to the ulterior 
bank of the river from his stand-point on the parallel. The river 
running there Northwest and then deflecting West and South until 
it takes its general course Southeast, the ulterior bank of the river 
was, geographically, the left bank thereof. The line thus mathemati- 
cally was fixed on the North side of the Potomac. ) |Lny one can see 
this by the simplest diagram, thus — • 



89 

The ulterior bunk of tlie river is the South side where the meridian 
of the spring cuts it, but it is the North side in the genenal course of 
the river. But the reply to that is, that the line was to run to Cin- 
quack, and Cinquack is placed on Smith's Map on the South side of 
the river. What did Cinquack mean ? A point of place, a wigwam, 
a chiefs residence, or a territory? Certain it is that by the charter 
the line of the Western shore of the bay was to terminate where the 
river disembogues into the bay, and there is no place on Smith's Map 
called Cinquack there. The name Cinquack is put on Smith's Map 
at or near the mouth of the Grreat Wicommico, some five or ten miles 
South ot the mouth of the Potomac river, or South of where it disem- 
bogues into the bay. Again, we know that Smith misnamed several 
rivers and places, as, for example, he called the Pocomoke the Wycho on 
the Eastern shore (see record of Accomac county court in 16G3 as to 
the true Pocomoke and Calvert and Scarbrough's report in 1G68, 
showing where the Pocomoke was known to be in that day). But 
this is all mera curious speculation now, for whatever was the Poto- 
mac line under the grant to Lord Baltimore in 1633, it was changed 
by the surrender of the country in 1651, and the grant of Charles II. 
the same year confirmed, in 1668-9, to Lord Hopton and others. It 
was changed, if ever on the South side, to the North side of the Po- 
tomac by the most plenary power of both the commonwealth and the 
crown. At first the line on the Western shore may have terminated 
on the South headland of the Potomac where it disembogues into the 
bay; but after the restoration of Charles II., it terminated on the 
North headland of that river at the ^xtreme Southeastern angle of Point 
Lookout. And this change, as will be shown hereafter, is still shown 
and proved by marks and monuments remaining yet on Smiths island 
in the Chesapeake bay. See depositions as to them. 

VIL 

And this brings us to enquire : how, when, and by what modifica- 
tions of his old charter, or by w^hat new charters, if any, was Lord 
Baltimore restored to his rights.^ He was certainly more than sus- 
pected by Charles Second of disloyalty to the crown, and that was 
certainly cause of forfeiture of any royal grant to him. See No. 142 
De Jarnette papers. 

The commonwealth had deprived him of the whole of his power 
and province, and restored it to the colony of Virginia. How much 



did the grace, mere grace, of majesty restore to him? If his corpor- 
ation was gone, did he have anything left but mere proprietary indi- 
vidual rights? He had to be restored to something. To what was he 
restored? It is utterly denied that the grant to Lord Hopton express- 
ly placed under the colonial jurisdiction of Virginia by charter, was 
undisturbed by " quo warranto," or by king's bench, or by kmg. It 
remains unimpeached to this day, and is binding on both states. It 
is insisted that he was given back, and could be given back the parts 
of his original limits so far on the Western shore as to the North 
bank of the Potomac. The king, whilst Lord Baltimore's title was 
taken away under the sovereignty of the com'th, and Maryland was 
therefore under royal grant, gave the river Potomac, under the great 
seal of England, to Lord Hopton and gov'r and council and burgesses 
of Virginia. Nothing could undo that grant but the king's bench. 
The king, after the grant, could not of his own motion revoke it by giv- 
ing it to another without the judgment of that court. Did the King 
Charles II. impose new conditions or new limits upon Lord Baltimore's 
grants? It is insisted he might do so, and even if that be an error of 
opinion, and the king might not be able to do so without his consent, 
yet did he consent, and take anew by his acceptance of any new terms, 
conditions and limits. If so, what? 

We know that Lord Baltimore's grant was lawfully modified to a 
great extent, but how far, with his own consent, we are not informed. 
However that may be, and whether the onus of showing belonged to 
Maryland or Virginia, is not material, for we know — 

VIII. 

There has been a controversy respecting the boundary of the two 
colonies; and. in 1663, it was brought to a specific and pointed issue. 
The laws of conformity had pressed so hard in Virginia upon the 
Quakers and other non-conformists that they were driven on the East- 
ern shore, then called Accomack, to the North and West of the mouth 
of the Pocomoke. A glance at the map will show that river runs 
from the N. E. of the peninsula until it comes near to its mouth 
East of Cedar straits, and then it suddenly widens into a sound of 
considerable width; and the part of its North bank embraced by the 
lands of Little Annamessex river, between that and the Pocomoke 
sound, consists mainly of salt marshes, not then desirable for set- 
tlement, and then not easily accessible from Accomack. Being tol- 



91 

erated in Maryland, and not in Virginia, the refugees from Accomack 
congregated in the Little and Big Annaraessex territories up to 
Marokin river. But ^square miles of this territory claimed by Vir- 
ginia was terra iirraa or arrable land, and it was inconvenient to be 
visited by any sheriff of Va. to collect taxes, or for any other purpose. 
Lord Baltimore's deputies seeing this, began to encourage this settle- 
ment and to grant patents in that region. No patents were sought by 
these refugees East of the Pocomoke river, and thus on that side of 
the river no dispute arose after the year 1668 about boundary. Ed- 
mund Scarbrough, the surveyor gen'l of Va. in Accomack, was, with 
others, employed by the lord proprietor of Maryland to conduct settle- 
ments to the Annamessex rivers. Finding that he was aiding to strip 
his own colony of her territory and that his employment by Maryland 
was incompatable with his official duty to Virginia, he exposed the 
policy of Lord Baltimore to acquire that territory by settlement, and 
caused the final adjustment in 1668. See the Maryland records: 1st 
one labelled No. 3, state papers, council record book 1666-68; 2d. 
The other labelled No. 4, state papers, council record book 1669, 
1673. 

These books, with others of the archives of Maryland, are now in 
the safe -keeping of the Maryland historical society in Baltimore, and 
were adduced by the commissioners on the part of Maryland. 

The first shows the disturbances about settlements on the Eastern 
shore of Chesapeake bay, and the correspondence of the governments 
of the two colonies respecting boundaries and the encroachments of 
settlements. 

The second shows a full and final settlement of the whole question 
of boundary and patents on the Eastern shore, at Big and Little An- 
namessex rivers and Pocomoke sound, and thence to the Atlantic 
ocean by a right line East. 

Edmund Scarbrough was a man of great ability and energy; was a 
man of large means, being a considerable patentee from Virginia, and 
perhaps Maryland too, and had actually been in Lord Baltimore's ser- 
vice, employed by him with others to cause the refugees and others 
from Virginia to settle down as low as Little Annamessex; but Scar- 
borough found the settlers under the lord'and proprietary of Mary- 
land encroaching on the territory of the colony of Virginia, of which, 
he was surveyor general, on the Eastern shore of Virginia, from the 
Wicommico river North to the Pocomoke sound South. This caused 
the collisions between him and Mr, John Elzey in 1663, and the cor- 



92 

responclence between the governors of Maryland and Virginia. Mary- 
land sent commissioners to James City to confer on the matter and to 
adjust it. The 9th act of the general assemUy of Virginia in 1662 
was "to prevent assemblies and conventicles of Quakers," &c. The 
68th, 69th and 70th, of the same year, provided for — 1st, grants of 
land; 2d]y, deserted land; and 3dly, seating of lands; which explains 
the reason of patents for the same lands to different persons. Act 
78th of the same year provided for what was afterwards called pro- 
cessioning of lands; to be done by view of certain select neighbors of 
the boundaries. There were no neighbors at Annamessex loyal to 
Virginia West of Pocomoke. They all claimed the protection of 
Lord Baltimore against the intolerance of the established church in 
Virginia. For this reason there could be no processing in all Anna- 
messex. Bat the refugees never settled East of the Pocomoke, be- 
cause it brought them in neighborhood of their persecutors, and 
accordingly three loyal neighbors could be selected who were willing 
to do the marking and remarking boundaries East of the Pocomoke. 
Thus there was no processioning on the West, whilst it was regular 
on the East side of that river. This left the way open to the en- 
croachments of Maryland settlers. 

This assemblage of Quakers and other refugees from Virginia, in 
Annamessex, and controversy respecting encroachments on the limits 
of the Virginia colony, caused the grand assembly, held at James 
City, September 10th, 1663, 15th year of Charles IL, to pass act 2d, 
"an act concerning the bounds of this colony on the Eastern shore" : 

"His majesty's interests on the Eastern shore of Virginia, together 
with some concernments of Lord Baltimore's, coming into consideration 
of the right hon. governor and council and burgesses of this grand assem- 
bly, they, pretermitting for the present some other of his majestie's con- 
cerns of lands until a fitter opportunity, do think fit for the p'-esent 
to enact, and be it further enacted, by the said right honorable, the 
governor, council and burgesses of this grand assembly, and the au- 
thority thereof, that publication be made as soon as possible by Col. 
Edmund Scarbrough, his majesty's surveyor general in Virginia, com- 
manding, in his majesty's name, all his inhabitants of the Eastern 
shore of Virginia, from Watkins jjoint Southward, to render obedi- 
ence to his majesty's government of Virginia, and make payment of 
his majestie's rents and all publick dues to his majestie's colony of 
Virginia. 

^'And whereas it has been controverted by some ignorant^ ill dis- 



93 

posed persons where Watkins point, the Lord Baltimore's Southern- 
most bounds on the Eastern shore, is situated, this grand assembly, 
by the care and special enquiry uf five able selebted suiveyors and 
two burgesses, and on the due examination thereof, conclude the same 
place of Watkins point to be the North side of Wicocommico river 
on the Eastern shore, and near unto and on the South side of the 
straight Limbo, opposite to Patuxent river; which place, according 
to Captain John Smith and discoverers with him in the year 1608, 
was so named, being the said Lord Baltimore's bounds on the Eastern 
shore, within v^'hich bounds his raajestie's subjects which now are 
seated, are hereby commanded to yield due obedience at their perils. 
And in case the said Lord Baltimore's lieutenants or deputies shall not 
be fully convinced of his or their actual or pretended intrusions, this 
grand assembly of Virginia, in due obedience, making this particular 
part of Virginia their present care on his majestie's behalf, do engage 
and command Col. Edmund Scarbrough, Mr. John Catlett and Mr. 
Richard Lawrence, or any two of them, whereof his majestie's surveyor 
general to be one, that upon convenient notice and assignment of time 
and place, at Monnokin or any other part of his majestie's country of 
Virginia on the Eastern shore, they, or any two of them as aforesaid, 
shall give a meeting to the Lord Baltimore's lieutenants or deputies, 
or his or their substitutes as aforesaid, the account whereof to be re- 
turned to his majestie's governor and council of Virginia for debate 
and determination thereof And in the meantime, all inhabitants on 
the Eastern shore as aforesaid are required, in his majesty's name, to 
conform due obedience to this act of assembly. 

"'Be it also enacted. That the surveyor general of Virginia 
aforesaid is hereby commanded and authorized to improve his best 
abilities in all other of his majestie's concerns of land relating to Vir- 
ginia, especially that to the Northward of forty degrees of latitude, 
being the utmost bounds of the said Lord Baltimore's grant, and to 
give an account of his proceedings therein to the right honorable gov- 
ernor and council of Virginia." 

This act brings us to consider the charter to Lord Baltimore in 
order to explain why Virginia claimed as high up the bay as near to 
the Patuxent. That charter as read inattentively calls for a " Wat- 
kins point with a V/ycho river on the West." 

Edmund Scarbrough executed this law with " fourty horse" taken 
with him •' for j)omp of safety." See his report hereto appended, 
characteristic alike of the man^ of the times, of the people of Anna- 



94 

messex, and of the nature of the controversy. It brought him into 
collision with Elzey and others, and he put the " broad arrow " over 
their doors. 

More patents than ever, began to issue from Lord Baltimore to 
settlers as low down as Pocomoke sound, and the court of Accomack 
took up the issue and vouched that the Pocomoke was not the Wycho, 
and never had been so called. And they were right. See Augustine 
Herman's Map. It was urged by Virginia that if thatjriver was the 
Wycho it had no Watkins point on the East of it, and if there was 
a Watkins point on the East of it, it was not the Wycho. See the 
records of the court of Accomack appended to Scarbrough's report. 

The description in the affidavits of this record of Watkins point 
exactly corresponds with the initial j^oint adopted afterwards by Scar- 
brough and Calvert. It is just as far North of Cedar straits as the 
eye can see in a clear day — a "spiral point/' but to understand 
this part of the line we must refer to 

IX. 

The Chartei^ of Maryland. 

In the British State Papers, colonial, vol. 43, No. 240, is a "mem- 
orandum concerning Maryland. It describes Virginia as a tract of 
land lying from 45 to 34 degrees N. L. — that it was divided into two 
colonies, the one lying from 34 to 40 degrees, the other from 40 to 
45 degrees, and it proceeds to state, that in 1632, " Cecil Lord Balti- 
more, upon suggestions that there was a certain tract of land in 
America not inhabited by christians, (as appears by the preamble,) 
obtained that charter whereby Maryland is now held, and for the pos- 
sessing himself thereof used great violence in driving away such of 
the people out of that part formerly called Virginia, as would not 
submit to his authority, &c. See DeJarnette papers. No. 137. This 
confirms the paper already cited, headed " Considerations, &c.,'' of 
Lord Baltimore's patent, which states that he did represent to the 
king that the country was settled by salvages — the country of the 
100 miles apart between the Plymouth and the London Co. settle- 
ments, between 38° and 40° N. Lat. He obtained his charter and 
the territory is described by the following, and what seems to be the 
best translation of it : 

" All that part of the peninsula or chersoaese lying in the parts of 



95 

America between the ocean on the East and the bay of Chesapeake on 
the West, divided from the residue of the same by a right line drawn 
from the promontory or headland called Watkins point, situated near 
the bay aforesaid, near the river of Wighco on the West, unto the 
great ocean on the East, and between that boundary on the South, 
unto that part of the estuary of Delaware on the North, which lieth 
under the 40th degree of latitude North of the equinoctial, where 
New England is terminated ; and all the tract of that land within 
the metes under written, (to wit,) passing from said estuary called 
Delaware in a right line, by the degree aforesaid, unto the true meri- 
dian of the first fountain of Potomack, thence verging towards the 
South, to the further bank of the said river, and following it by the 
Western edge where that looks to, or (inclines to) the South, unto a 
certain place called Cinquack, situated near the mouth of the same 
river, where it disembogues into the aforesaid bay of Chesapeake, and 
thence by the shortest line unto the aforesaid promontory or place 
called ' Watkins point.' " 

On the words of this grant it will be observed, 

1. It provides for thfi boundaries on the Eastern shore of the Chesa- 
peake. 

2. For tho'se on the Western shore of that bay and for the closing 
line between the E. and W. shore. 

3. The part granted was to be divided from the residue of the pe- 
ninsula by a right line. 

4. That line was to be drawn /rom the promontory or headla7id 
called Watkins point. 

5th. That point was situated near the bay aforesaid (near the river 
of Wighco or Wycho) on the West. 

6th. The i^ight line thus drawn from that promontory on the West 
was to run " unto the great ocean, the Atlantic, on the East." 

7th. That line thus run was to be the Southern boundary of the 
grants to Lord Baltimore on the Eastern peninsula or chersonese of 
the Chesapeake. 

A dispute arose about where the true Watkins point was, which 
culminated in the act of Virginia of 1663, the appointment of 5 sur- 
veyors and two burgesses, with the surveyor general at their head, to 
demand obedience to the royal government of Va. as high up as the 
Limbo (meaning strait), now called Hoopers straits, to the only pro- 
montory on or near a liver Wighco on the Western side of the East- 
ern shore. 



9e 

Smith mistook the Pocomoke for the Wighco, and why? Because, 
as his map shows, he thought he found King Wighcocomoco's house 
on its bank, and it was his wont in many instances to name the great 
waters, such as bays and rivers, after their kings. King Chesapeack, 
at the site of what is now called Hampton Roads, in Princess Ann co., 
Virginia, gave the name to the bay. Powhatan, high up the James, 
to that river. Smith gave the name of King Patowomeck to what 
is well known to have been called by the Indians the Quiriough. It 
was for that reason that the maps which Lord Baltimore caused to be 
" achieved " for Ogilby's History and Herman's Map, which he vouched 
to bf' accurate, have his bounds dotted on the South side of Acquia 
creek, it being what Smith called the Quiriough. Smith laying that 
branch down as tlie " Quiriough," and the Quiriough being what was 
called and meant by Potomac, he claimed South to the head of the 
branch now coming from the West and emptying into the Southern 
bend of the Angemoy reach of the Potomac river. See Nos. 96 A 
and 96 A of the Dejarnette papers. Ogilby's History and Map of 
Maryland, and also Augustine Herman's Map. There is also the 
Susquahanaugh, which Smith named after its king. Thus from the 
head to the mouth of the bay the principal rivers and bay itself were 
named by this first explorer after the names of the chief'Indian kings. 
But Smith called several rivers and points by English names, as Gun- 
ters harbour. Smiths sales, Peregryns mt., at the head of the bay, 
Willowbys river, Smalls point, Sparkes point, oii the Western shore 
North of the Potomac river, and Barnes point, Winstons isles, Mum- 
fords point, Russells isles. Limbo, Watkins point, Keals hill, on the 
Eastern shore. Four of the points on the Eastern shore were named 
after four of his men on the expedition, two, we are told, were North 
of the Limbo (Hoopers straits), and two, Watkins and Pteades points, 
were South of that strait. He lays down both of these points South 
of Limbo, and neither as a mathematical point made by the extreme • 
of a neck or promontory or tongue of land, but both as a neck or pro- 
montory or headland or tongue of land projecting for some distance 
into the waters where they lie from the main land. He lays down 
Reades point or promontory or neck on what he calls the Wighco, at 
its mouth, where it disembogues into its sound. Watkins point he 
lays down on the neck or tongue or geographical point found between 
what is called Big Annamessex and the Pocomoke bay or sound. 
Maryland claimed to go to the extreme of the point South, because it 
was on the Wighco. Virginia claimed that it was on the Wighco, 



97 

but the Pocomoke was not the Wighco; but that the Wighco was 
further North, where it is now acknowledged and laid down on all the 
maps. Maryland argued Avhether the Pocomoke is the Wighco or not, 
there, identically, on the Pocomoke for the Wighco, or on the Wighco 
for the Pocomoke, Smith laid down a place which he called by an 
English name, and he could not mistake about that name however he 
may have mistaken the Pocomoke for the Wighco or any other Indian 
names. He named that name himself. To this, Virginia replied : two 
natural objects are named as guides of the location of both — a Wat- 
kins point near a river Wighco on the West. If the Pocomoke had a 
Watkins point near it, the Watkins point there had no Wighco near 
it, and the river was the major natural object to control bounds. She 
knew there was a Wighco, and but one Wighco river on the peninsula 
East of the bay, though there are several Wighcos on the Western 
shore. The Wicocommica, emptying into Monie bay (mouthing near 
Nantiquack, now Nanticoke river), true had no Watkins point on it, 
but no Watkins point laid down by Smith had any Wighco near it. 
The Wicocomoco, mouthing through the Limbo, was nearer to Mum- 
fords point. On this ground Virginia sent her Scarborough expedi- 
tion to the disputed territory in Annamessex in 1663, and to show 
how Smith mistook Indian names or misapplied them, he called the 
river mouthing at Mumfords point the " Rapahannock river," when 
no such name was ever known at all by the English settlers at any 
time on the Eastern shore of the Chesapeake. But there is one error 
apparent in the map of Smith, which trigonometry and astronomy 
detect. His parallels of latitude are laid down not less than 20 miles 
too far South. All the Russell isles are placed North of 38° N. L., 
and Watkins point is laid down North of that parallel too. Would 
Maryland consent to run a line to any point North of that parallel 
then or now.^ We will see what her response to that question was in 
several instances. Lord Baltimore had consented and acknowledged 
to the parallel of 38° as his true Eastern shore boundary on the South. 
See his answer as to his bounds, adopting Augustine Herman's Map, 
which, it is believed, is the original of Ogilby's Map, furnished by 
Lord Baltimore himself, having his coat of arms printed on it, and 
said to be his own achievement on its face. If Maryland goes by the 
map of Smith, she will not reach the 38th parallel; if she goes by 
Herman's Map, she will be exactly on that parallel on the Eastern 
shore. But it is idle to be exposing this confusion from early maps, 

or this conflict of claiming the Watkins point by Smith and the par- 
13 



9$ 

allel by Herman, when both were wrong, and when the SStti parallel 
divides the mouth of the Potomac exactly, and is the exact equi po- 
tent of the line which was run by the colonies in five years from these 
disputes of 1663, and this brings us to 

X. 

The line run hy Philip Calvert and Edmund Scarborough in the year 

1668. 

The lord lieut. of Maryland continued to grant patents just at 
this time from 1662, and the colony of Virginia being resolved to 
bring the inhabitants of the disputed territory into subjection and 
obedience, and they being refugees from intolerance, and dreading to 
come again under the oppression from which they had fled for the 
sake of religious freedom, danger of a serious collision between the 
Koyal Government of Virginia and the settlers on the Annamessex 
lands became so threatening, that the governor of Maryland invoked 
the co-operation of the authorities of Virginia, and sent an embassy 
to James City to complain of wrongs, and to arrange some mode of 
adjusting and settling the whole controversy in respect to boundary 
and titles to lands. In book of MS., labelled "No, 3, State papers. 
Council Record Book," dated from 1656 to 1668, of the Maryland 
archives, the preliminary correspondence and proceedings will be found. 
The result was that Philip Calvert, the nephew of Lord Baltimore 
and the Chancellor of Maryland, on the part of Maryland, and Ed- 
mund Scarbrough, surveyor general of Virginia on the part of Vir- 
ginia, were appointed commissioners to settle the whole question. 
They were instructed to " meet upon the place called Watkins point, 
and thence to run a divisional line to the ocean sea, cite." This in- 
struction they obeyed, and on the 25th day of June, 1668, they made 
their report under their hands and seals. They reported : 

1st. That after a full and perfect vieiv taken of the point of land 
made hy the North side of Pocomoke hay and South side of Anna- 
messex hay, they have, and do conclude the same to be Watkins 
point, from which said point, so called, we have run an East line 
agreeable with the extremest part of the Westermost angle of the 
said Watkins point, over Pocomoke river, to the land near Robert 
Holstons, and there have marked certain trees which are so continued 
by an East line running over Swanseacute creek into the marsh of the 



99 

sea side, with apparent marks and boundaries, which by our mutual 
agreement according to the qualifications aforesaid, are to be received 
as the bounds of Virginia and Maryland on the Eastern Shore of 
Chesapeake bay." And there is no doubt, and it is now admitted by 
the present commissioners of Maryland, who have acted as commis- 
sioners on these bounds heretofore, that these articles of agreement, 
and this settlement of boundary, as reported, were approved and con- 
firmed by Lord Baltimore, and they certainly were by the state of 
Virginia. And though the line was thus definitely and distinctly 
marked and acquiesced in and recognized from 1668, and liad been 
known by its apparent marks, which still exist, and have existed for 
184 years, yet, as soon as the oyster fisheries became valuable and 
began to yield revenue to the state having jurisdiction oyer them, the 
county authorities of the state of Maryhind on the Eastern shore 
began to encroach first upon the territory of Smiths island, and then 
upon the waters of Tangier sound. See Bradshaw's deposition. And 
though the question has been since settled by adjudications in the 
courts of Somerset county, Maryland, as late as 1854, in favor of the 
line claimed by Virginia, (see records of Somerset county Maryland 
court,) yet Maryland still persists in claiming territory and waters far 
South of the line established in 1668, on the joint and sealed and 
confirmed agreement of the commissioners Calvert and Scarbrousrh. 
It is inconceivable how the boundary line on the East side of the 
Chesapeake bay, between Maryland and Virginia, thus and then es- 
tablished, can be disputed or doubted. 

1st. By the original grant of the Province of Maryland the line 
on the Eastern shore was to he a right line. 

2d. That right line was to be drawn from "the promontory or 
head land called Watkins point, situate upon the bay aforesaid," (the 
bay of Chesapeake,) near the river Wighco on^ the West, unto the 
main ocean on the East. 

XI. 

The articles of agreement between Philip Calvert and Edmund 
Scarbrough show — 

1st. That they were men of considerable rank, and both high 
officials of their respective provinces. The one, chancellor of Mary- 
land, and the other his majesty's surveyor-general of Virginia. 

2nd. That each of them were acting under full authority, the one 
" deputed by the hon. the governor of the province of Maryland to treat 



100 

and conclude upon the bounds of the said province," and the other 
authorized and commanded to lay out the bounds of Virginia. 

3d. That in order to enable the Surveyor-General of Virginia to 
execute the commands of his Royal Majesties commission to him 
"setting out the bounds of Virginia, with a reference to his majesty's 
honorable governor and council of Virginia, his majesty's honorable 
governor and council had by letter moved the honorable the Lord 
Baltimore's lieutenant-general of Maryland, to appoint some fitting 
person to meet upon the place called Wathins point with the surveyor- 
general of Virginia. 

4th. And thence to run the divisional line to the ocean sea, &c. 
Such were their full powers, and such their clearly expressed in- 
structions. -They were to " meet together upon the place called 
Watkins point, and thence to run the divisional! line to the ocean." 
What did they do ? Their report clearly shows : 
1st. " That the honorable Philip Calvert, Esq., chancellor of Mary- 
land, being fully empowered by the honorable lieutenant-general of 
Maryland, and Edmund Scarbrough, his majesty's surveyor-general 
of Virginia, first took a fidl and perfect vieio of the point of land 
made by the North side of Pocomoke bay and South side of Anna- 
messex bay." 

2nd. " That they concluded the same to be Watkins point." 
3rd. That from said point so-called, they had run an "East line. 
4th. That "they had run an East line from that point," agreeable 
with the extremest part of the Westernmost angle of said Watkins 
point. 

5th. That they run said East line from the extremest part of the 
Westernmost angle of Watkins point "over Pocomoke river," not up 
it and then to either bank, but over it. 

6th. That they run this East line from said point " to the land 
near Eobert Holston's." 

7th. That there, near Robert Holston's, they had marked certain 

trees. 

8th. That they had so "continued their marks by an East line." 
9th. "Running over Swanseacute (Swanseagut it ought to be) 

creek into the marsh of the sea side." 
.10th.' "With apparent marks and boundaries." 
11th. "Which line, by their mutual agreement, according to the 

qualifications aforesaid, was to be received as the bounds of Virginia 

and Maryland on the Eastern shore of Chesapeake bay." 



101 

12th, And "in confirmation of their concurrence" they conclude 
by adding "we have set to our hands and seals, this 25th day of 
June, 1668." 

(Signed) PHILIP CALVERT. [Seal.] 

EDMUND SCARBROUGH. [Seal.] 

And these bounds by this East line from Watkins point, thus 
ascertained, and the very part of an angle of it specified, from which 
the line was run to the ocean sea, was received by both provinces at 
the time, and ever since until lately, as the bounds of Virginia and 
Maryland on the- Eastern shore of the Chesapeake bay. The archives 
of Maryland and her Somerset and Worcester county records show it, 
and her best historians attest it. McMahon, in his history of Mary- 
land, after relating the disturbances between the two provinces about 
settlements on the Eastern shore (vol. i., pp. 20-21, edition of 1831, 
by Lucas, &c.), says : 

" The entreaties and remonstrances of the former (the governor 
of Maryland) were at last crowned with success, and commissioners 
were appointed — viz : Philip Calvert on the part of Maryland, and 
on the part of Virginia its surveyor general, Edmund Scarbrough, 
who were empowered to determine the location of Watkins point, and 
to mark the boundary line between the two colonies running thence 
to the ocean. By them this duty was fully discharged on the 25th of 
June, 1668, and in consummation of it certain articles of agreement 
were drawn up and signed by each of them, on behalf of their respec- 
tive governments. In one of which they designate the point of land 
made by the North side of Pocomoke bay and the South side of An- 
namessex bay as 'Watkins point,' and the divisional line between the 
two colonies to be an East line run agreeably with the extremest part 
of the Westernmost angle of said Watkins point over Pocomoke 
river,, and thence over Swanseacute creek into the marsh of the sea 
side, with apparent marks and boundaries." 

Again: John Kilty, register of the land office for the Western 
shore of the state of Maryland, and author of a book entitled "Land- 
holders' Assistant and Land Guide," being an exposition of original 
titles, &c., published by G. Dobbin & Murphy at Baltimore in 1808, 
p. 164, says : 

" The proprietary governor, claiming the beginning of his patent 
where it was afterwards acknowledged to be, and finding that settle- 
ments had heen commenced in that quarter under the authority of 



102 

Virginia, commissioned John Elzey and two other persons to repair 
to the place and grant warrants, under particular and favorable con- 
ditions, to such as would take them. On the arrival of these com- 
missioners, and notice of their errand, a demand was made by Ed- 
mund Scarbrough, surveyor general of Virginia, that they should 
acknowledge obedience to his majesty as being out of Lord Baltimore's 
jurisdiction, and he proposed at the same time the appointment of 
commissioners to determine the situation of Watkins point. Elzey 
and his associates paid no regard to this proposition, but continued to 
fufil the views of the proprietary hy encouraging surveys and settle- 
ments under his patronage. The dispute was at length terminated 
by Philip Calvert, chancellor of Maryland, and the above-named Ed- 
mund Scarbrough, appointed commissioners for the purpose, who, on 
the 25th June, 1668, being met on the spot, signed two instruments of 
agreement, by one of which they determined the point of land made 
by the North side of Pocomoke bay and South side of Annamessex 
bay to be Watkins point intended in Lord Baltimore's charter, and 
the proper divisional line between Maryland and Virginia to be an 
East line run by them 'agreeably with the extremest part of the West- 
ernmost angle of the said Watkins point over Pocomoke river to the 
land near Eobert Holston's,' where, say the commissioners, 'we have 
marked certain trees, w^hich are so continued by an East line running 
over Swanseacute creek into the marsh of the seaside, with apparent 
marks and boundaries.' By the other instrument they adjusted every- 
thing that concerned the rights and interests of those patentees or 
settlers whose situations were changed by the settlement of said divi- 
sional line." 

Thus what Calvert and Scarbrough said* and did A. D. 1668, Mary- 
land's own register of original land-titles vouched and admitted in 
1808, and one of Maryland's brightest jewels, as well as jurists, John 
V, L. McMahon, of the Baltimore bar, among the most illustrious, 
vouched as late as 1831, just before or about the time when the 
dredging for oysters became so valuable as to make the Annamessex 
people begin to doubt, and start new and old traditions about " where 
is Watkins point"; and it must be remembered, too, that whilst 
McMahon admitted that Watkins point was finally and fully ascer- 
tained in 1608, and that an East line was run then from a defined 
and specified part thereof on the Eastern shore to the ocean, there 
was not a son of Maryland who opposed the claim of Virginia to the 
North shore or bank of the Potomac river on the Western shore with 



103 

more zeal and knowledge than he did. He was exceedingly jealous 
of Maryland's rights, was devoted to the religion of her founders, 
familiar with her archives, a master of her laws, and her strong and 
eloquent champion of boundaries. He had questioned every inch of 
land, water, and argument claiming them on the Potomac, but he was 
too fair and candid an historian to contradict Maryhmd's own acts and 
records respecting the Eastern shore boundary. 

See also McMahon's Maryland, page 91, touching the bounds of Som- 
erset county, Maryland. See also Bosman's History of Maryland, vol. 1, 
p. 247-8-9, and note and p. 262. There could not be a report of com- 
missioners on any survey more in obedience to the requirements of the 
case, more in conformity to the instructions of the joint authorities 
under which they acted and more exact in defining every particular 
of their initial point, of the points passed in right line from that to 
the extreme shore of the East, of the natural objects it touched, and its 
place of terminus. See De Jarnette papers No. 22. In one of the trans- 
lations of Lord Baltimore's charter it is written thus : "By a right 
line drawn from the promontory or cape of land called Watkins 
point (situate in the aforesaid bay near the river of Wighco) on the 
West." 

By putting the words in brackets as here, all confusion is cleared 
up; the meaning of the charter unmistakably is " Watkins point on 
the West of the peninsula situate," &c. The line then was clearly to 
run from West to East. It had to run from West to East from that 
point " over Pocomoke river." It was marked by apparent marks and 
boundaries, '^ numbering upwards of thirty still remaining, any two 
of which identify and verify it for its whole course. If its initial 
point, the part of Watkins point which was its Westernmost angle, 
was entirely washed away, the still apparent marks and boundaries 
demonstrate its course with mathematical certainly and precision. If 
it was a due East course, then one single mark enables us to give it 
precise location for its whole length. No matter what course it was 
run; "if it was a right line," then any two marks on it will deter- 
mine its course. If the initial point don't now exist to show 
where the line began, the line exists to show where the initial point 
was in 1668. But Watkins point does exist, and the part of it then 
named from which the line was run. The Westernmost angle then is 
still not only pointed to by the marks and boundaries of the line 
which was run, but it is still the Westernmost angle of Watkins point. 
Watkins point is not only the initial point of the line on the Eastern 



104 

sWe, but it is the initial point of the whole boundary line of Mary- 
land, and it is both the initial and closing point of all the lines be- 
tween Maryland and Virginia. No matter which way the line run 
after running up the Delaware to the 40th parallel, after passing West 
on that parallel, after running South on the meridian of the first 
fountain of the Potomac river, after striking either bank of that river, 
right or left, and running down to either Cinquack at Smiths point or 
to Point Lookout," it had to close at Watkins point. Now, it is 
reasonable, not to say reputable, to suppose that two provinces and 
two states, like Maryland and Virginia, in all the time of their colo- 
nial and sovereign existence never found and agreed upon the initial 
and closing point of their divisional lines? So that it can be certain- 
ly identified and verified now. It is two preposterous to be presumed, 
and if pretended merely it can be disproved. 

Calvert and Scarbrough strictly obeyed their instructions — they 
ran a "right line" sirat^/^i— geometrically "the shortest line that 
can be drawn between two points. A right line may be horizontal, 
perpendicular, or inclined to the plane qf the horizon." It is said the 
line was not run due East. It was not reqiwed hy the charter to he 
so run. It was to be drawn from the promontory or head land called 
Watkins 2?oint, near the river Wighco on the West, into " the main 
ocean on the East." They met on the place called Watkins point. 
They identified the location of "Watkins point" after " taking a full 
and perfect view of it to be : The point of land made by the "North 
side of the Pocomoke bay and South side of Annamessex bay." 
That they concluded on the place itself where Smith's Map lays it 
down : — not a mathematical point without length, breadth or dimen- 
sions, but a tongue or point of land, a geographical tract of country 
forming a promontory between Annamessex and Pocomoke bays. The 
Big Annamessex is the river meant, not the Little Annamessix, now, 
but not then mapped ; the latter had no bay. The promontory is 
laid down by Smith in form very like as it is laid down now on the chart 
of the coast survey. It is in extent from North to South about ten 
miles in length, its general line of coast being nearly due North and 
South. Its whole surface pointing to Tangier bay or sound in a gene- 
ral Southwest course ; and it is an average width of from five to seven 
miles — the terminus or Southern point of the promontory is now, as 
it was laid down in Smith's Map of 1628-9, at what is now called 
Cedar straits. The Little Annamessex river, as it is now called, a 
creek, not widening into any bay before it mouths into Tangier sound, 



105 

laid at the time of Smith's Map as it lies now, midway precisely be- 
tween Big Annamessex bay's Southern headland and Cedar straits, 
the terminus of the promontory of Watkins point. And the North 
headland of Little Annamessex was, by Smith's Map, as it is now, the 
" Wester^nost angle" of the coast of the promontory of Watkins 
point. It is the promontory of Watkins point, and the only promon- 
tory of that point projecting into the Tangier bay. The point of the 
main land is not a "promontory" at all ; it cannot be so called either 
in the language of navigation, geography or geometry. It projects 
into a shallow, narrow thoroughfare, not considerable enough hardly 
to be called a "strait," is veiled entirely by groupes of islands East, 
West and South of it, and not navigable except by small canoes at 
high tide. 

The part of Watkins point which is its Westermost angle, taken 
by Calvert and Scarbrough, is a "head land," is a "point," is a 
"promontory" projecting from the shore "into the bay or other ex- 
panse of water," a small " cape" or tract of land " extending into 
the sea," or a lake or river beyond the line of the shore, and it can be 
sailed around and "doubled" by navigation. A promontory differs 
from a cape in denoting highland. Lowland projecting beyond the 
line of the coast into the sea may be a cape or headland, but it must 
be highland comparatively to be a promontory. In that sense even 
the North headland of Little Annamessex, the Westermost angle of 
Watkins point, as compared with the point at Cedar straits, is the 
"promontory" of the ten miles coast of Watkins point. All the 
land along that coast is marshy and flat, but this angle is high enough? 
to be sandy, with some elevation higher than that at Cedar straits. 
But whether the most prominent part of Watkins point be the initial 
point of the surveyor not, it loas made the part for the initial p)oint. 

There the point started, not only for the reason that it was the 
Westernmost angle of the coast, but because it was midway the 
length of coast — it was fairest and most equal and just. They could 
not start a line from each and every part of a geographical point ten 
miles long — they had to agree upon apart of the point as the initial 
part for the line that had no breadth. If they began North, at Anna- 
messex, they would wrong Maryland ; if South, at Pocomoke, they 
would wrong Virginia. They therefore took for their initial point the 
North headland of Little Annamessex, on what is now called Janes 
island, midway exactly between Big Annamessex and Pocomoke bays. 

And here it must be noted that they then, Calvert as well as Scar- 
14 



106 

brough, did not call the PocomoJce the Wighco. Calvert is presumed 
to have known it was a misnomer by Smith, and that the true Wighco 
was North. They called the river, the North shore of which was the 
Southern bounds of Watkins point, Pocomoke ; and they knew that 
the Wighco was North of Annamessex bay, whose Southern shore was 
the North bounds of Watkins point. They were ordered and bound to 
run " a right line." They did, by running, as they reported, an " East 
line," and were wonderfully accurate, for the times and instruments, in 
not varying from an East line but 15' over what Virginia by law 
allowed in her surveys — 5°. Calvert and Scarbrough varied but 
5° 15' from due East. See Michler's Keport and Henning Stats, at 
Large. 

And they stated expressly that they had run the line " fkom '" Wat- 
kins point, and they specified the part of the point from which they 
had run it, viz : " the extremest part of the Westernmost angle of 
the same." And they futher report that they run this line — not up, 
nor on the phores of the Pocomoke river or sound, but " over Poco- 
moke river." This word is not "along," to run lengthwise, nor 
"across,"^to run from side to side merely, but it is stronger, and ex- 
presses more than either. The line did not run "aZo?^(/" the right 
bank of the river and at a certain point run "across" the river, but 
it was run ^^over" the river, signifying that in this instance it was 
moving from the West and over the river to a place beyond the left 
or East bank of the river near Robert Holston's. To pass over a 
river is to pass over both banks as well as the water. Its root signi- 
fies motion, arriving at and departing from, and to pass across and 
beyond, whether above or on the surftice, it always imports excess. 

But there is a better test of the meaning of the commissioners than 
mere words. If they had started at Cedar straits — if that was their 
initial point — nowhere would "a right line" run East from it have 
touched the Pocomoke river. It would have intersected the open Po- 
comoke bay or sound from three to five miles below the mouth of the 
river, and would not have run over the river at all. Again : It was 
run expressly to a place near Robert Holston's on the East bank of 
the river. Now, even granting the Pocomoke bay was nieant for river, 
then another test, more trying still, obstructs the claim of Maryland. 
How came the place on the East side of the river near Robert Hol- 
ston's to be so far North of a right line run East from Cedar straits ? 
That place, now easily identified, lies nearly Northeast from Cedar 
straits. This proves mathematically that if these commissioners ran 



107 

the part of a right line East to near Robert Houston's house, they 
could never have started at or anywhere near to C<^dar straits. On 
the contrary, they expressly say tliat they run an East line from Wat- 
kins point '"'agreeable with the extremest part of the Westernmost 
angle" thereof. They could not run it from the whole, each and every 
part of Watkins point, for that would have run the broadest line ever 
known to the god Terminus between provinces. They agreed upon 
the midway Westernmost angle of the point, and from '^the point" 
agreeable loitli that part of it. i. e., from that extremest part of the 
Westernmost angle of Watkins point, they ran an East line "over 
the Pocomoke river" to the ocean sea, etc., etc. They expressed this 
distinctly, not only the "part of Wathins point" from which they 
run, but the part of Pocomoke river "to" Avhich they ran, viz: to 
the laud near Robert Holston's. And "there they had marked certain 
trees." They don't report that they there commenced to mark trees 
for the first time on the line, but that there especially they were par- 
ticular " to mark certain trees," because it was there that the line 
"was run over Pocomoke river." They were particular there not only 
to " mark certain trees" but to name the land where it was — near 
Robert Holston's. No preceding word or phrase negatives or asserts 
the fact that they did or did not mark other trees before arriving at 
the Pocomoke river; but the subsequent language, "v/hich are so con- 
tinued," implies that the whole line was cow^mwozis/?/ marked, by trees 
or otherwise. We have already shown a reason why, if marked, the 
marks were not preserved or were purposely destroyed : the want of 
"processioning" or renewal of marks at regular intervals of years, for 
want of "neighbors" loyal to Virginia, and owing to the aversion 
of the refugees from Virginia settled there to be subject to Virginia's 
laws of persecution and intolerance. But however that may be (this 
part of the line on the main land West of tiie Pocomoke river has 
not been searched for marks by the present commissioners), let it 
be admitted, for argument, that they marked no trees on that part 
of it; yet does that prove that there were no other marks of some- 
thing else besides trees there.^ Was not the extremest part of the West- 
ernmost angle of Watkins point itself a mark, a headland to begin 
with, more permanent and perdurable than marks on trees ? Suppose 
there was not a mark between that and the "certain trees" marked 
near Robert Holston's, would that invalidate the line, or render its 
course uncertain even ? Calvert and Scarborough say the "certain 
trees which are so continued," &c., not meaning the trees they there 



108 

• 

marked were continued, but their marking of the trees was so con- 
tinued to the sea side. Will not the line continued to be marked to 
the sea side show the course of the line West as well as East of the 
Pocomoke river ? It does show its course West, and that is direct to 
the "extremest part of the Westernmost angle of Watkins point." . 
But there was no necessity, and it was then, and is now, very incon- 
venient to mark from that angle to where the line crosses the Poco- 
moke river. The distance is only fifteen miles, and the line, nearly 
its whole course, passes over an immense body of mink and muskrat 
marshes. The whole area South of the line West of Pocomoke river 
down to the Pocomoke bay and river and West to the Tangier sound and 
Cedar straits, is but about thirty-two square miles, eight only of 
which is forest or arable land, and the remaining portion, twenty-four 
square miles, is marsh. Its extreme breadth is between the initial 
point of the survey and Cedar straits, and the shore of Pocomoke sound 
running Northeasterly from Cedar straits. The strip between the line 
and the sound narrows as you approach the mouth of the river to an 
average width of not more than a mile and a half The estuaries at 
the mouths of East creek and Marumsco creek make up North to the 
line, and that of Ape's Hole creek runs up in half a mile of it. It 
is very doubtful whether there were at that day many if any obstruc- 
tions to th", line of sights for a survey the whole distance. There are 
but few now as compared with any other line of the same extent. 
From the Westernmost angle to James Tuft's house on Somers cove 
near Crisfield, is a distance of clear sight for three miles. Then com- 
mences some pine forests of secondary growth that, according to the 
topographical marks of De la Camp's survey of the line, continues 
for about two miles, and thence to Marumsco creek for six or seven 
miles tlie line is over marsh, and then begin the swamps of Pocomoke 
for about four miles. There are not five miles of distance on part 
of the line which can't now be run by the longest sights with the 
naked eye. Having the headland of Little Annamessex for a natural 
object to start by and to sight an East course by, there was no difficulty 
then, and there is none now, in running the line without a mark. The 
Westernmost angle of Watkins point and the crossing of the line 
over Pocomoke river could always easily by long sights determine 
where marks and monuments could be placed when required. 

Whether this part was marked or not, except at the two termini, 
there they at least icere fixed; and if marks were not placed there, 
there were marks placed on Smiths island corresponding to this line 



109 

deflected South of West at the angle of Watkins point towards Smiths 
point, under Lord Baltimore's grant, and afterwards deflected North 
of West, under Lord Hopton's grant, to Point Lookout. The first 
line cut the South end, and the last the North end of Smiths island 
nearly through, or at its great thoroughfare. See Michler's and De 
la Camp's surveys, and the depositions on the subject of the stones 
and stumps and other marks at Barnes point, near Troy island, in the 
thoroughfare, on Cow ridge, and on the Pitcraft patent, and at Drum 
point. The line was never actually run across the bay. Lord Hop- 
ton had no grant on the Eastern shore, but when the grant to him 
was confirmed to Virginia jurisdiction, that state of course claimed 
that the line closed at Watkins point from Point Lookout instead ot 
from Smiths point. This accounts for two lines, one at each end of 
Smith's island, and the marks there, and for the confusion of tradi- 
tions about them. But Maryland can not deny or dispute that Lord 
Baltimore's and Virginia's patents were both required to make Henry 
Smith's title to Pitcraft on that island complete for the whole and re- 
spective portions of that tract patented. This is sufficient to show 
that there was a divisional line on Smiths island, and if so, how could 
any line be drawn from Smiths point to Cedar straits and cut Smiths 
island.^ Drawn to the Westermost angle at James island, it cuts 
South of Horse hammock, and leaves all of Shanks and a large por- 
tion of Hog neck in Virginia; drawn to Cedar straits, it leaves all of 
Smiths island North in Maryland. An inspection of this diagram on 
the map of coast survey will reduce the problem to one of Euclid. 
Virginia has always claimed and possessed the Southern end of Smiths 
island; that is not denied. It is North and West of Cedar straits, 
and Smiths point is South of both Smiths island and Cedar straits; 
how then could a right line across the bay be drawn from Smiths 
point to Cedar straits and cut any portion of Smiths island. '^ The 
problem would puzzle all geodesy. Smiths island was part of the 
Eastern shore, and was divided in no other way than by the imaginary 
closing line from Smiths point or Point Lookout to the Westermost 
angle of Watkins point. It was so divided by both of those imagi- 
nary lines, and at the South end the royal or state's jurisdiction was 
never denied, but mutually admitted by patents for the respective 
parts of the same tract of land which were in the respective colonies to 
the same patentee at the same time. Virginia granted her part, and 
Maryland her part, of Pitcraft to Henry Smith, assignees of Stevens. 
(See copies of deeds.) There being a divisional line there then, it 



110 

must be plain that the initial and closing point of Lord Baltimore's 
grant was North, and considerably North of Cedar straits. They re- 
ported further that they had continued the East line over Swansea- 
cute (meaning Swanseagut) creek into the marsh of the sea-side. And 
here it might as well be claimed that they ran up or doion or along 
Swanseagut; by a crooked line when they reported an East, a straight, 
a right line run over Swanseagut creek, as they had reported it run 
" oyer Pocomoke river." All this was done ''with apparent marks 
and boundaries." Not one in most lines between states or provinces 
was ever more clearly and plainly marked. The marks and bounda- 
ries are still apparent. Lieutenant Michler's report to the commis- 
sioners, Dec. 20th, 1859, says : 

'' Some of the marks consist of old blazed trees, such as oak, 
hickory, gum, cherry, persimmon, mulberry and sycamore. Other 
marks of the line are to be found either in county roads, or lanes, or 
in divisional fences of neighboring farms, or in gates, or sometimes in 
houses, known and admitted to be such by all persons, irrespective of 
state, the localities being handed down from one generation to another. 
Along the whole length of the line, from Chincoteague to the Poco- 
moke river, a distance of between twelve and thirteen miles, there 
were existing of such marks, at the time of the survey, 33 trees, one 
gate^ the sight of the ruins of an old house standing at the time the 
Scarbrough line was run, two state roads located on the line, making 
in all an average of one mark for every half mile." These marks 
when laid down on the maps were found to be nearly in the 
same straight line, tlte general direction furnished the course. Two 
only of those marks are at any distance from a straight line, and these 
not more than 350 feet. The azmuthe or direction of the line 5° 15' 
N. of E., and the line between Chincoteague bay and Pocomoke river, 
when prolonged across the latter river, and along and near the N. 
shore of Pocomoke bay to Tangier sound," &c., "reaches the sound 
at the Westernmost point of Janes island, about 500 feet South 
of the coast survey signal planted on this island. No boundary 
marks of any kind were found West of the Pocomoke river." And 
they mutually agreed that this line thus beginning and running and 
marked continuously from the bay to the sea side, " was to be re- 
ceived as the bounds of Virginia and Maryland on the Eastern shore 
of the ChesapQakc bay. Thus, wherever beginning, and however run- 
ning or run over land and rivers and creeks and bays, marked or not 
marked from natural objects to natural objects, over Pocomoke and 



Ill 

over Swanseagut creek to the sea, a straight line, "'twas to be re- 
ceived as the bounds of Virginia on the E. shore," and it ivas so re- 
ceived by ioth provinces. This agreement was signed and sealed and 
approved, and cannot be revoked or modified without tlie consent of 
both parties ; whatever may be tlie issues respecting the Potomac 
boundary, there can be but one issue respecting the boundary on the 
Eastern shore — an issue of fact; — was this line run as described and 
mutually agreed upon ? The whole case may be rested on that issue. 
But Virginia is desirous of presenting the original fairness of the ad- 
justment. We have already shown that in reference to the shape and 
size of Watkins point as a tongue of land from which to run a line, 
it made an almost exact division of it, to begin at the extremest part 
of the Westermost angle of it, and to run an East line to the ocean 
with a variation of about 50° 15' N. That point is exactly under the 
38th parallel of N. latitude. That parallel was the line of Marjdand 
on the Eastern shore. These commissioners were not to run any line 
but from that point to the main ocean. They had nothing to do with 
the Potomac line or the closing line across the Chesapeake. But they 
had to look to two criteria to determine the line accurately ; first, to 
Watkins point ; second, to the 38th parallel of N. latitude. They did 
both with remarkable precision and justice to both provinces. They 
took the North headland of Little Annamessex which divided Watkins 
point. But the part they took for the initial point of their survey 
was about two miles South of the 38th parallel ; the variation of the 
needle in 1668 is estimated at 4° 54', West; Virginia allowed by law 
in her surveys about 5° variation. Disregarding the variation at that 
date it may be said that the surveyors' compass itself observed both 
the criteria of an almost exact division both of Watkins point and of 
the 38tli line of latitude on the plane of the Eastern shore. Calvert 
and Scarbrough tell us they began at the extremest part of the 
Westernmost angle of Watkins point, and *ran the line over the Po- 
comoke river and over Swanseagut creek to the marsh on the sea side. 
Now one has but to look at the maps prepared by Michler and John 
De la Camp, under the direction of the then commissioners McDonald 
and Lee, in the year 1860, to see that the line ot Calvert and Scar- 
brough, after passing East over the Pocomoke river, cuts the parallel 
of 38° N. L. almost exactly in the middle of the boundary line, runs 
across Swanseagut a mile or more North of 38th parallel, and termi- 
nates on the sea shore about one and a half miles North of the same. 
Thus the 38th degree being the exactly true line, by observing the 



112 

Westernmost angle of Watkins point and Swanseagut creek, they 
divided the plane of the peninsula as equally by the diagonal line as 
by the parallel itself What Maryland gained in the angle South of 
38° on the Western side, Virginia was compensated for by the angle 
gained by her on the Eastern side of the peninsula ; the Calvert and 
Scarbroughfline cuts the 38th degree near Wagram about four miles 
or more East of the Pocomoke river : Mayland gained rather the 
largest angle. But whether it was equal or not, it was received and 
adopted by both provi7ices as the line on the Eastern shore, and has 
been the legal if not respected line for upwards of two centuries. 
The lands of the late John M. Dennis, one of the most intelligent 
and respectable gentlemen of Maryland, who lived and died near 
where the Calvert and Scarborough line crosses the Pocomoke river, 
always paid land taxes partly in Maryland and partly in Virginia ; 
and the present Judge Franklin, now living on the Eastern shore of 
Maryland, now pays land tax partly in Maryland and partly in Vir- 
ginia, on a large tract at Troy, or Long point, on the shore of Chin- 
coteague bay, East of Swanseagut, at the Northeast corner of Acco- 
mack on the main. The line was straight from the Franklin to the 
Dennis farm — from Long, or Troy point, to the crossing of the line 
over Pocomoke river. When ? how ? by what agreement or survey ? 
By whom was it ever made a crooked line between that river and the 
Westernmost angle of Watkins point, to which from that river it 
points straight as an arrow now .^ Certainly Virginia has never con- 
sented to modification or change of the line on the Eastern shore since 
16G8. How then is it that Maryland pretends that it ran by the 
river ? 

This crook in the line the commissioners of Maryland have en- 
deavored to made out of the words " agreeably, &c.," in the report of 
C. and S. The distortion is expressed in the report of Thomas J. 
Lee, September, 19th, 1760, to Gov'r Hicks, of Maryland, page 17. 
He says : " That these commissioners (Calvert and Scarbrough) wers 
qualified " to fix the bounds of Maryland and Virginia upon a neces- 
sity for so doing, and fixed and established the luhole boundary across 
the peninsula or chersonese " by a marked line between the Pocomoke 
and the marsh on the sea-side," run East by compass "agreeably 
with," not from, but in the direction of the " extremest part of the 
Westernmost angle of Watkins point." It is enough to say for the 
argument, but not enough to say for the reproach of this plain perver- 
sion of language and of fact, that it contradicts the charter of Lord 



113 

Baltimore, the instructions of both provinces to Calvert and Scar- 
brough, and their express report to the contrary. The charter makes 
Watkins point the initial and closing point of the whole boundaries 
of Mar3'land. Now, if this idea of Mr. Lee means anything but to 
crook a straight line, it means to argue or claim that the line was run 
from the PocomoJce rive?- to the shore of the ocean, " agreeably with 
the extreraest part of the Westernmost angle of Watkins point, point- 
ing to it, und on a line with it; but that then Calvert and Scarbrough 
returnnd to the Pocomoke river where the line ran " over it," and in- 
stead of allowing the line to run over the river, ran to the middle of 
the river and not over it, but down it to Cedar straits, and thence to 
Smiths point. If that is true, then, the line never^ran from or to the 
extremest part of the Westermost angle of Watkins point at all. It 
makes one impatient in asking whether the charter did not require a 
right line to be run thence to the ocean? Whether Watkins point 
was not identified by Calvert and Scarbrough as laid down on Smith's 
Map.? Whether a line could be run from the whole point.? Whether 
the extremest part of the Westermost angle of that point was not 
agreed upon as the part " agreeable with which the line was to be 
run "? Whether the commissioners of '68 don't expressly report that 
they run the line /rom that^ar^ East over the Pocomoke river and 
Swanseagut creek to the marsh of the sea.? And whether the line of 
the Pocomoke river would be agreeable with such a point or part of a 
point on an East line across the peninsula running the course of the 
line East of the Pocomoke? Was ever an initial point so treated by 
a survey as never to touch it after starting from it? This is really the 
only pretension of the present commissioners for contradicting the ex- 
press report of Calvert and Scarbrough. We are willing to rest the 
whole issue upon the test whether they started at the said part of 
said angle of Watkins point and ran the line straight, or right or East 
to the ocean. There is nothing to warrant this pretension of Mary- 
land. It is a pnre invention, not only without authority or ground, 
but pointedly in contradiction of the facts reported by Calvert and 
Scarbrough. The only meaning of the phrase "agreeably, &c.," is 
that the line was run conformably with the extremest part of the 
Westernmost angle of Watkins point, and not with any other part of 
that point. With that part of that point was the line agreeable and 
with none other. At page 12 of his same report, Mr. Lee inculcated 
the same idea by saying " the boundary they (Calvert and Scarbrough) 

established by marking certain trees began over Pocomoke river on the 
15 



114 

land near Eobert Holston's, and was continued by marked trees on 
what they deemed an East line to the sea-side." The boundary they 
established " began " not over Pocomoke river, but it was run /row 
the extremest part of the Westernmost angle of Watkins point " over 
Pocomoke river, as well as over Swanseagut creek, to the sea." An- 
other error of Mr. Lee is same page 17 — " that they neither marked 
nor established a line of boundary across ^^ any part o{ what is now 
Somerset county, Maryland." This is an error equally gross. Somer- 
set county, Maryland, was established in 1666, the 22d August, two 
years before this line was run by Calvert and Scarbrough in 1668. On 
the South it was bounded by a line from Watkins point East to the 
ocean, East by the ocean, and North by Nanticoke river and sound, 
and West by the Chesapeake. Now this shows how Somerset county 
came to incroach on the point at Cedar straits. Maryland then claimed 
that her limits extended South to Cedar straits. If that was the 
initial point of the line between the two provinces, then a county of 
Maryland could be laid off that far South; and suppose it was; why, 
then Mr. Lee was right. But its Southern boundary line was no more 
definite than the whole body of the land of Watkins point. But the 
line of the two provinces was afterwards, in 1668, fixed and established, 
beginning at the extremest part of the Westernmost angle of Wat- 
kins point at the headland of Little Annamessex, midway between 
Big Annamessex and Pocomoke bays, and was run East over Poco- 
moke river. Was this not marking by an initial point on Watkins 
point, and by a marked place of crossing Pocomoke river a line of 
boundary across a part of what is now Somerset county, Maryland, if 
Somerset had before then been laid off as low as Cedar straits.? Mr. 
Lee says : " That they marked and established the present divisional 
line between Worcester county, Maryland, and Accomack county, 
Virginia." The truth is that Calvert and Scarbrough never did mark 
any line between Worcester and Accomack counties, but they ran the 
line, which is now the divisional line between these two counties, not 
as between them as counties, but as between the two provinces of 
Maryland and Virginia. Was Worcester laid off before or after So- 
merset? If before, how came the Somerset Southern line to run up 
the river Pocomoke, instead of East or by a right line to the ocean, 
to the point of the Southwestern corner of Worcester to the point near 
the land of Eobert Holston? If afterwards, why still did it not run East 
to the ocean by right line.? Lee says the line was intended to be an East 
line; the charter says that it should be a "right line" to the ocean. 



115 

Calvert and Scarbrough tell us where they began and how they ran 
the line; and yet this commissioner, without data, without any evi- 
dence whatever of any other line than that of Calvert and Scarbrough 
ever having been run by any body at any time, bluntly says: " They 
(Calvert and Scarbrough) established the boundary between the two 
colonies East of the Chesapeake precisehj as it now exists, and they 
(Calvert and Scarbrough) or Maryland and Virginia designed that the 
Southern limits of Maryland should extend to Pocomoke bay." 

It is only a proof that a respectable topographer was not as familiar 
with charters and deeds, and evidences of title and the laws which 
govern their construction, and the bounds of provinces, as he was with 
the quadrant and theodolite. He speaks of a boundary as it now ex- 
ists. What boundary.^ None other existed but that established and 
fixed by Calvert and Scarbrough in 1668. For a line bound to begin 
at some part of Watkins point, bound to be a right line to the ocean 
from that point which was begun at a specified point, which was run 
East to the marshes of the sea by a continuous course from the initial 
point over Pocomoke river and over Swansegut creek, which Maryland 
and he both admit binds Worcester, one of her counties, he arbitra- 
rily asserts and reports another line, beginning at another place, run- 
ning, not a right line or East line, following the meanderings of the 
Pocomoke river, not over it, to where he says the Calvert and Scar- 
brough line began, in the face of what they reported, and in the face 
of the charter of Lord Baltimore itself, and this he avers to be the 
line "precisely as it now exists." Did it never occur to him to inquire 
why, if the Calvert and Sarbrough line binds Worcester county in 
Maryland, it does not bind Somerset county in Maryland too? That 
line never did cut Somerset county, Maryland, in one sense, for it only 
divided it from Virginia — the part South of it was Virginia, and not 
Somerset county, Maryland. 

But if Calvert and Scarbrough did not begin and run an East line, 
or right line as they describe, where did they begin and run it ? They 
ran one, and but one line. Maryland has never named or shown any 
other, except as claimed by this report of Mr. Commissioner Lee. 
Even he admits it was intended to bean East line; but even he could 
never suppose that any one could have intended the line he claims 
from Cedar straits up the Pocomoke river to near Rob't Holston's to be 
an East or a right line, because the moment he got to near Rob't Hol- 
ston's he found whoever ran the line East of the Pocomoke could run 
an East or a right line if they intended to do so, and they certainly, 



116 

on his theory, had not done so; and, as the charter required, before 
they reached near Robert Holston's, would his line be ''agreeable with 
the extremest part of the Westernmost angle of Watkins point" ? 

But besides the argument of "agreeable with," Maryland advances 
another argument called "ivasMng away." Watkins point was laid 
down and named by Smith. There it is now, in the same shape of 
headland and coast, remarkably the same; and the headland of Little 
Annamessex is still there the Westernmost angle, and there still is the 
point of main marsh land at Cedar straits, and there are the Fox 
islands, so strikingly described by the county court of Accomac in 
1663 as a "spiral point" — so called because of broken thoroughfares 
of the Fox islands at its end. Those islands were there then as now, 
as Smith's Map shows. To get over this, Maryland has resorted to 
" traditions." Can traditions rebut the recorded articles between 
Calvert and Scarbrough ? Can all the washings of the Chesapeake 
bay, if the North headland of the Little Annamessex was not now 
still the Westernmost angle of Watkins point — could that rebut the 
mathematical certainty which can show where it was ? Did not 
Michler's survey find it ad punctum ? But the traditions prove where 
it was. See prior reports and the depositions taken by this com- 
mission. 

One of the present commissioners on the part of Virginia, (Mr. 
Wise,) in 1833 began to represent the Accomack congressional district 
of Virginia in the house of representatives of the United States. 
Certainly a considerable part of the Southern end of Smith's island 
was considered by all the people living on it as in Virginia ; and the 
people on that end voted in Virginia. John Marshall, living then 
and now on Shanks part of Smiths island, always voted for Mr. 
Wise— and there were others. Later Mr. Jones, one of the commis- 
sioners on the part of Maryland, represented the Somerset district of 
Maryland in the house of representatives of the congrtss of the United 
States, and he was for several years cotemporary there with Mr. Wise. 
Every two years, whilst they were there together, their elections came 
on— did John Marshall, and others on the South end of Smiths 
island ever vote for Mr. Jones ? If not, it was because they, and their 
fathers before them were deemed, and had ever been deemed, in Vir- 
ginia territory. Can Mr. Jones show how ^that came to pass, if the 
line on the Eastern shore began at Cedar straits, and was, at the same 
tirae^ a right line across the bay to Cedar straits from Smith point ? 

A. rjo-ht line from Point Lookout to Cedar straits ivould cut Suniths 



117 

island; but no such Hue was ever run, and could not be, under Lord 
Baltimore's charter, and was not required to be under Lord PL)pton'8 
grant, he being granted nothing on the Eastern shore. Now these are 
exceedingly strange facts, when contrasted with such traditions as 
those of •' King Nelson," and those of living witnesses who pretend 
to have heard " once upon a time," from old people long dead, that 
the main land at Cedar straits once made mainland with Fox island, 
and Fox island with Watts island South — which must have been 
long before John Smith's survey in 1608, and long before his map in 
1629 — which lays down the strait now called Cedar and the Fox and 
Watts islands just as they are now. The fact is that such specula- 
tions on physical geography, founded on such washy traditions, and 
the mistaken proclamation of Governor Harvey, and the clamors of 
Quakers of Annamessex in 1663, and the fact that Smith erred in 
laying down the 38th parallel so far South, were once the only pre- 
texts for claiming as far South asOnancock. See Smith's Map, Scar- 
brough's Report, the Proclamation of Governor Harvey, and the de- 
positions taken before this commission. But all that pretension was 
ended by the settlement fully and finally made by Calvert and Scar- 
brough in 1668. Lee even admits " that agreement between these 
commissioners was accepted as final by the crown, and the lord pro- 
prietor of the province," and " that they declared this line (by Calvert 
and Scarbrough) to he the hounds of Marijland and Virginia upon 
the Eastern shore of Virginia." What more then is required but to 
re-mark it permanently ? If arguments of inference are still to delay 
the execution of this agreement capable of being n^duced to mathe- 
matical demonstration, there are abundant sources of inference sound 
and clear in favor of what Virginia claims. For example, there were 
two classes of bays and rivers, the jurisdiction of which the two pro- 
vinces and states have had to regulate by compact or concurring 
laws — a river, the Potomac, was concurrent or co-terminous with the 
line of the provinces, whether it was on right or left bank, or in the 
channel. The Chesapeake bay was not co-terminous, or coQCurreut 
with that line, like the Potomac, but the line of the provinces cut it 
transversely. Now compacts were made and concurrent laws were 
passed by both Virginia and Maryland in res[)ect to the building of 
lighthouses, establishing buoys, forts, ferries, wharves, &c., &c., and 
pilotage. It would be very tedious to encumber this report with an 
analysis of all or any of the old laws to show the contrast of those 
joint regulations, pertaining to the co-terminous waters, with those 



118 

pertaining to the waters which were cut across, or transversely, by the 
divisional line of the two provinces. Was the Pocomoke provided for 
like as the Chesapeake bay, or like as the Potomac ? In every case 
like as the Chesapeake bay. Act 9 of 1663 shows that the king of 
Potomac's lands were all sold and proceeds appropriated by Virginia. 
Act 1, 1667, relates to a tax of two shillings per hogshead on tobacco, 
&c., for relief of inhabitants " in Potomac river." Act 1, 1679, re- 
lates to stores and garrison against Indians at the head of Potomac at 
a place called Niapsco. See Purvis' Collection, &c., London edition of 
1682. All the laws touching the Potomac on every subject apply all 
along the shores or channel from head to mouth. But the laws pro- 
viding for the proportionate joint expense of light houses, buoys, &c., 
where one province held the head, and the other the mouth of the 
waters, were very different. Maryland, from her charter, held the 
head of the Chesapeake bay and the head of the Pocomoke river ; 
and Virginia after, as well as before the grant to Lord Baltimore, held 
the mouth of each. 

It was for that reason that the regulations touching the Potomoke 
river were assimilated to those touching the Chesapeake bay, and not 
to those of the Potomac. But this line of argument is a waste of 
labor, when we have the positive and indisputable line agreed to by 
Calvert and Scarbrough and fixed forever by the two provinces in 
1668. But not only did Calvert and Scarbrough and the two colo- 
nies fix and establish this line, but they settled and adjusted the rule 
by which every question of claim or right dependant upon tlie line 
should be determined. Lord Baltimore, as we have seen, hurried and 
encouraged the issue of patents by Elzey and others from 1662-63 up 
to 1668. And Virginia had granted patents up to Bokotonock on the 
Sinepuxent bay on the sea coast. Maryland had been occupying 
Southward on the bay, and Virginia Northward on the sea side. 
When the line was fixed the rule was settled to govern these conflict- 
ing patents too. See the Imprimis of the Articles of Agreement. All 
the patentees of Virginia were saved in their titles. Again : All pa- 
tentees of Virginia elsewhere on the Maryland side of the line, of lands 
not also patented in Maryland, were saved as in the first class. Again: 
All patentees of Virginia, who had also seated them in Maryland, 
though already patented in Maryland, but not seated, should enjoy 
the same, unless they were proved to have seated them in defiance and 
despite of the governor of Maryland after warning given, &c. Again: 
Any patentees of Virginia in Maryland for lauds for which Maryland 



119 

had granted patents, should yield to the patentee from Maryland; in 
all and every case ^^ paying the half fees to the surveyor general 
(Scarhroicgh) , and full fees to the secretary and chancellor {Cal- 
vert)." Here is an example that commissioners in old times were like 
those of present times, careful of their own perquisites. Scarbrouo-h 
got half and Mr, Secretary and chancellor got full fees. And why the 
diiference, is not now known. Certain it is, that the patentees of 
Virginia in the Maryland territory, as found by the line established, 
had a much better provision made for them than the patentees of 
Maryland found to be in the Virginia territory. There was no reci- 
procity at all. Every patent granted by Maryland South of the line 
fixed, was left to its invalidity. Those granted before 1668 ^vere an- 
nulled, and those after that date were void. 

Such is the ffite of every patent adduced now on the part of Mary- 
land. Why was this ? Some people in Annamessex always alleged 
that Scarbrough conjured Calvert by allowing full instead of half 
fees. The reason was a graver one, and rested on better grounds. 
Not an intruder from Maryland South of that line fixed by Calvert 
and Scarbrough in 1668, either before or after that period, ever seated 
or settled East of Pocomohe river. There were no settlers on that 
part of the Eastern shore line who had ever defied or resisted the 
royal government of Virginia. For the reasons already stated, the 
refugees and non-conformists had all been driven West and North of 
the Pocomoke river. There, from Pocomoke to Manokin, they had 
settled m defiance of the royal government, and to defeat its jurisdic- 
tion — ijust as Maryland in the 3d article excepted against such as 
were seated in her limits under Virginia's patents, so Virginia ex- 
cepted to all such settlers in Annamessex in her limits, as all had 
been seated by patents from Maryland in defiance of the royal gov- 
ernment. All these had been so patented and seated; there were none 
anywhere else to be provided for, and those there were therefore ex- 
cluded from this saving of titles. Nobody wanted their lands South 
of the line then, though some are valuable now; and the titles, by 
mere omission and dereliction, have never been disturbed. Now they 
will be in a tantalus condition; if they are given to Maryland they 
will be seated on the Tangier and Pocomoke sounds, with the oyster 
rocks, which are their meat and bread, at their doors, and will be ex- 
cluded from taking any in Virginia's waters. If Virginia takes them 
within her limits, they can live and thrive and their lands increase in 
value. 



120 



After Lord Baltimore settled his boundary with the colony on the 
Eastern shore of the Chesapeake bay, he had a controversy with Wm. 
Penn about the boundary of his Northern limits. He claimed the 
colony of Delaware and the line of 40th North latitude. The grant 
to Penn is described in the King's letter to Lord Baltimore April 2d, 
1681. See DeJarnette papers, No. 113. 

The contest between Penn and Lord Baltimore was one between a 
court Quaker and a cavalier Catholic. The latter was much the most 
honest gentleman. From London, 16th September, 1681, Penn warned 
settlers, whom he claimed to b'^ within his grant of three degrees 
North latitude, not to pay any more taxes, or "sessments," by or 
under any laws of Mai yland. He coaxed them movingly, yet warned 
them of his power with his superiors in London. This letter was 
partly addressed to Augustine Herman, Lord Baltimore's map maker. 
See Dejarnette papers. No. 114. On the 19th of August, 1682, the 
king ordered Lord Baltimore at once to proceed to set forth and as- 
certain the boundaries between Maryland and Pennsylvania, and says 
" that the boundaries of Maryland and Pennsylvania cannot by any 
method be so certainly effected as by an admeasurement of the two 
degrees J^orth from Watldns point, the express South bounds in 
your patent, and already settled by commissioners between Virginia 
and Maryland." Here is the king's attestation of two facts : first, 
that Lord Baltimore was granted but two degrees, and in saying 
'•the express Southern bounds in your patent," the meaning is not 
that tivo degrees were expressed, but that Watkins point was ex- 
pressed ; and second, that being already settled by comr/iissioners, the 
latitude was then fixed and known to be two degrees from the 40th 
parallel ; Watkins point fi.xed the degree, its latitude being known. 
If the latitude of Watkins point was not known to Smith in 1629, 
it must have been known later in 1682, for then the observatory at 
East Greenwich had been established eight years under Flamsteed. 
Again, in the same pap^r, the king said : " We have thouglit fit to 
recommend the same in a most particular manner to you, willing and, 
requiring you, that with all possible speed, upon the receipt hereof, 
you proceed to determine the Northern bounds of your province as 
the same borders on Pennsylvania, by an admeasurement of the two 
degrees granted in your patent, according to the usual computation 



121 

of sixty English miles to a degree. Beginning at the South hounds 
of Maryland, according as the same are already settled by commis- 
sioners as is above mentioned, &c." Thus Lord Baltimore was in 
efiect ordered to begin his measurement on his South bounds, as 
already settled by Calvert and Scarborough, the only commissioners 
ever then appointed, who did settle them at Watkins point, with its 
initial at its Westermost angle. If degrees were not named in 
Baltimore's patent, Watkins point was, and was found exactly on the 
38th parallel. Lord Baltimore had then but to measure 120 miles 
North from Watkins point and he would reach his North boundary 
on the 40th parallel. But it matters not what its latitude was, this 
is proof, that it was settled both that Watkins point was ascertained 
and fixed, and that Lord Baltimore's Southern boundary line was 
settled ; and we have asked in vain, again and again, when did it 
become unsettled ? And it must be observed, that this order came 
just fourteen years only after the Calvert and Scarborough survey. 
When all the facts were fresh in the records of England and the 
colonies. See DeJarnette papers, No. 117. But we have positive 
evidence, which Lord Baltimore himself has left to the state records 
that he acknowledged and acquiesced in the Calvert and Scarborough 
line. 

He has left his own account of " a conference held between the 
Eight Honorable Lord Baltimore, pro'r of Maryland, and William 
Penn, Esq., proprietary of Pennsylvania, at the house of Col. Thomas 
Tailler, on the Kidge, in Ann Arrundell county, the 13th of Decem- 
ber, 1682." See Dejarnette papers, No. 118. With a short preface 
he gives their colloquy. He describes Penn's florid manner, " It was 
oily, it is true; he would do all to be a good neighbor." He then 
produces a letter from the king (that just quoted). On reading it, 
Lord B. complained of some misinformation, and produced his patents 
and a transcript of Penn's patents, and then describes himself as say- 
ing : " I have for my Northern bounds the AOth degree of North lat., 
which, by your patent, is your Southern bounds, as Watkins point is 
mine." Did he, then, and when he noted what was said, then, not 
know where Watkins point was ? and where the identical part of it 
was where his Southern bounds began.? Nothing is left to doubt 
about the answer to that question; for fortunately he had the correct- 
ness of his statement of this conference certified and appended to it, 
and the first name of six persons who signed the certificate, is that of 
*' Philip Calvert," his nephew, his chancellor, his commissioner, with 
16 



122 

Scarborough, in 1668. Lord Baltimore certified the true copy him- 
self, found in the state paper office of England " Colonial Maryland," 
vol. 43, p. 149, 153. Here, then, when with this letter of the king's 
twice reminding him that his Southern boundary loas settled by com- 
missioners at Watkins point. And when he said " Watkins point is 
my Southern boundary," he could have said nothing else in the pres- 
ence of "Philip Calvert" but what de did say and admit. And in 
speaking of Watkins point thus, he cannot be understood as meaning 
any other point and part of the point than that which had been iden- 
tified by "Philip Calvert" and Edmund Scarborough. In reply, 
Penn reminded him he had but two degrees of latitude. He did not 
deny it. See p. 2. And then the wily Quaker tempted him to start 
further South at 37°, 5' N. L. He {Penn) would take loJiere B. ended. 
This puzzled Lord B., but he was not to be trapped, and he would 
consider; but Mr. Penn must run line of 40th degree first. Penn 
then proposed for him to begin at the capes of the Chesapeake, which 
he said was in 37°, 5' N. L. The cunning shad had no scruples to 
conspire against Virginia's right of territory, and to tempt Lord B. 
to try to take it. Lord Baltimore, though knew that the lower he 
ran South the narrower would be his territory North. He then drew 
back from being pressed Southward down the Eastern shore penin- 
sula. Penn wanted the outlet of the Susquehanna river. Lord B. 
repeated that he claimed 40th parallel to be taken by a sextant of 6 
or 7 feet radius. Penn then offered to lay aside the king's letter, if 
Lord B. would begin his South line at 37° 50' instead of 38. Lord 
B. bluffed his proposal by asking Penn whether he had purchased the 
Duke of York's pretensions to Delaware .^^ Penn : " Upon terms," 
but wanted to proceed first to the bounds between him and Lord Bal- 
timore. Lord B. still stuck to 40° N. L., " which to find," said Penn, 
" I propose to begin at the capes and run two degrees." To that Lord 
Baltimore replied : " My Southern bounds being Watkins p)oint, ivas 
so determined by commissioners from his majesty and others from 
my father. Now had they sett out Watkins point higher up the bay, 
my father must have been contented thereivith, and the Northern 
bounds being the 40th degree of Northern latitude, beyond which I 
am not to run." 

Here is the full admission that the Watkins point line was fixed, 
by whom fixed, and that he was bound by it. Set out higher up or 
lower down " his father and he had to be contented therewith." Could 
any thing be more definitely expressed than this? Penn again and 



123 

again repeated his proposal of the capes, and as ofter Lord Baltimore 
recurred to 40th degree and the 7 foot sextant. Lord Baltimore again 
recurred to Delaware, and asked on what do you claim? Penn begged 
to conclude first discourse; Lord B. persisted in his charter. Penn 
poked at him the capes again. Lord Baltimore demanded 40°, no 
sea-quadrant, but a seven-foot sextant. Penn proposed arbitrators; 
then arose a jar about a Captain Cannaway, and mis-reports and some 
suspicions of foul play about maps, &c. Lord B. held to his patent 
and appealed to the stin to show where the 40th degree N. L. was. 
Penn wanted to go to the capes again. Lord Baltimore told him he 
might for his own satisfaction. Penn then became soft; whispered a 
wish " between otirselves." Lord B. only first premised that an ob- 
servation be duly taken to answer the king's commands. Penn then 
nudged, it seems, closer up. He must have whispered low when he 
said : "I question not, but if the Lord Baltimore loould vouchsafe to 
discourse the business in private with me, we should fairly accom- 
modate all matters." We are not left to conjecture what " to dis- 
course" ihidhw^mQS&m private meant. No. 119 of the Dejarnette 
papers explains all. In a letter of 11th June, 1683, dated at Pa- 
tuxent, Lord Baltimore says : '' Having lately had the long desired 
second conference with ni}^ neighbor, Mr. William Penn, I send you 
the same." And he prayed to be heard in person versus Penn. He 
would embarque for England in April 1684 to make good his claim to 
Delaware. The written conference was headed : " The sum and sub- 
stance of what was argued and spoken by Charles Lord Baltimore and 
William Penn, Esq'r, at their private conference at New Castle, on 
Delaware river, Tuesday, the 29th May, 1683." When they met that 
day, Lord Baltimore desired to know of Mr. Penn what proposals he 
had to make about their bounds, Penn answered that he would not 
insist on his majesty's letter of 29th August about the two degrees of 
latitude. But there was an admeasurement still to be insisted on. 
That seemed strange to Lord Baltimore. Penn, "not without some 
heat," explained what he meant by another admeasurement. It was 
this : Take an observation at Watkins point, ascertain its latitude, 
thence to measure to the 40th degree; saying that out of every degree 
he did not doubt but to gain six or seven miles, and by that means to 
gett water at the head of Chesapeake bay, and that this was the mys- 
tery, &c., &c. • He would procure it from his majesty. Lord Balti- 
more replied he doubted whether he could so impose on his majesty 
and the council; spoke of Watkins point as Ids South hounds fitter 



124 

he had fixed it, and could not see why his North bounds, as well as 
South, could not be measured. He spoke also of Penn's grant hy 
degrees, and said, " I had nothing given me hy any numher of degrees, 
but only Watkins point for my South hounds. He objected further, 
when Penn intimated another proposal; he offered to bribe Lord Balti- 
more for the inlet of the Susquehanna and some land. Lord Baltimore 
could not assent without admeasurement of his Northern bounds. 
Penn then inquired about latitude of Palmers island in the Susque- 
hanna river. It was sixteen miles Southof 40th degree; twelve miles 
from New Castle. Penn then asked the price. Lord Baltimore 
wanted time, but Penn would give him but a day. Th3y could not 
agree, and parted. 

This convicts Penn of trying to buy Lord Baltimore to lay his 
claims on Virginia territory. He would not and did not, but abided 
by Watkins point and his Southern bounds, '^already settled by com- 
missioners." This was to his honor. By whom, when, how, for what 
reason, was Charles Baltimore's decision and observance of good faith 
broken ? The ground for doubting or denying this settlement in 
1668 is a mystery. Lord Baltimore strong and bravely, but in vain, 
after much correspondence, praying to be heard; after an accrimoni- 
ous controversy with Markham about the Delaware survey, and in- 
curring displeasure by omitting to proclaim "William and Mary," he 
was deposed from the right of lord proprietor, and left merely his 
rights of individual property. See his letters to Sir Lyonell Jenkins, 
June 12th, 1683, No. 120; December 7th, 1683, No. 123; to Blaith- 
wait, No. 124, December 11th, 1683; to Sir Lyonell Jenkins, "Me- 
morandum concerning Pennsylvania," Feburuary 12th, 1684, No. 125; 
Sir E. Herbert "concerning Wm. Penn," 30th June, 1684, No. 128;. 
Wm. Markham's answer to the Lord Baltimore, March 17th, 168|, 
Nos. 130, 131, 132; Penn's petition, August 18th, 1685, No. 135; 
Report of the Lords of the Committee for Trade and Foreign Plan- 
tations "upon ye difierence between the Lord Baltimore and Mr. 
Penn, 13th November, 1685," No. 135; prescribing oaths of allegiance 
and supremacy; memorandum concerning Maryland and war with 
France, 26th April, 1689, No. 139; declaration of the inhabitants of 
Maryland proclaiming "William and Mary," January 7th, 1690, and 
order of his majesty thereon, with letter to Maryland approving the 
proceedings of inhabitants thereof, and ordering them to secure the 
government. No. 140; Lord Baltimore's petition to the lords of the 
"Comroittee for Tra(^e find Foreign Plantations," for a hearing, and 



125 

his humble proposals; and Lord Chief Justice Holt's opinion that 
" the king may by his commission constitute a governor (of Mary- 
land) whose authority will be legall," petition dated September 1st, 
1690, No. ]41; and Lyonel Copley, Esq'r, commissioned governor; 
commission to Lyonel Copley, Esq'r, March 12th, 1691, No. 142. All 
the numbers here referred to are of the Dejarnette Papers. 

The reason assigned by George Treby, attorney general, for seizing 
Maryland was, " The nature of the seizure is only to take the govern- 
ment out of the hands that neglected and endangered it into the king's 
hands; but the laws and customs and the propertyes of the inhabi- 
tants are to be preserved." 

This brings us to 

XI. 

The deposition of Lord Baltimore. He was not restored to his lord 
lieutenancy until 1715 by George I. From 1633 to 1715 the lord 
proprietorship existed, with the exception of some two years, by 
ouster of the Claiborne rebelli>9u, of eleven years or more under the 
commonwealth and Cromwell, and of twenty-five years from 1790. 
Out of eighty-two years in all, the lord proprietor was out thirty-nine 
years and in but forty-three years. His territory was curtailed m 
that time by the decision that Delaware paf^sed to Penn from the 
Duke of York, and by Penn's settlement about sixteen miles South 
of 40th dea-ree N. L. Lord Baltimore never had an unclouded and 
quiet title until 1715. What then was restored to him ? Certainly 
Delaware and the part of Pennsylvania taken from him were never 
restored, and there is no more evidence that any portion of the grant to 
Lord Hopton, &c., &c., was. Pennsylvania, Delaware and Virginia all 
continued alike to hold to their respective parts of the dismem- 
berment of. Lord Baltimore's original territory. He certainly yielded 
the Northern Neck of Virginia, and to the boundary of the Fairfax 
stone. Why, if he is now entitled to the Potomac river ? That was as 
much in the grant as was the whole neck; and the same claim which 
drove him to retire to the first fountain of the North branch of the 
Potomac, equally constrained him to yield the whole river and its 
islands. See Laws of Virginia, August 10th, 1736, George XL, ch. 
13th, an act for confirming and better securing the titles to lands in 
the Northern Neck, held under the Right Honorable Thomas Lord 
Fairfax, barou of Cameron, &c., &c. Hen. Statutes at Large, vol. 5, 
p. 514. 



126 



XII. 



But what quieted all titles and bounds, more than any preceding 
events or causes between all the provinces, was the definitive treaty 
of peace settled between Great Britain and France at Paris, 10th 
February, A. D. 1763. The main ends and objects of that very im- 
portant treaty, were to make peace and to perpetuate it ; especially 
by the fixation and description of boundaries of the various provinces 
of the respective sovereignties in America. Each power described 
what they claimed and what they renounced jurisdiction over, and 
maps were made of their agreed divisions. Fortunately Mr, Dejar- 
nette procured in England a photograph copy of a section of the 
English maps made under that treaty, '' by Eman Bowen, geographer 
to his majesty, and John Gibson, engraver.'' This map contains a 
number of the articles of the treaty printed on its face. Its title is : 
" An accurate map of North America, describing and distinguishing 
the British and Spanish dominions on this great continent ; according 
to the definitive treaty, concluded at Paris 10th February, 1763. 
Also, all the West India islands belonging to and possessed by the 
several European Princes and States. The whole laid down accord- 
ing to the latest and most authentic improvements." And £in its face 
it is inscribed : " The limits of His Majesty's several provinces are 
here laid down as they at present exercise their jurisdictions. But 
the limits of the Massachusetts province with New York, New York 
with New Jersey, Connecticut with New York, and of Pennsylvania 
with Maryland, are not yet finally determined. Nor is the boundary 
of North and South Carolina yet settled ; or of South Carolina with 
Georgia." But the boundary of Maryland and Virginia was settled 
and determined and laid down by authority of Great Britain and the 
geographer to His Majesty, George III., under this treaty. And the 
boundary of the Potomac is placed distinctly on the left, or North 
bank of that river, to Point Lookout, and thence South of East to a 
point on the Western shore of th"^ peninsula ; and thence is drawn 
East to Swauscut creek on the Eastern side of the peninsula. This 
is the highest authority known to the law of this case. It is by and 
under treaty laid down with all the care and exactitude required by 
the exigencies ol future peace and quiet possessions between the two 
greatest powers on earth. Now is it to be supposed or imagined that 
Grea,t Britain herselfj in a negotiation like \hi&, did not know the 



127 

boundaries between her own provinces, and especially two of the 
oldest colonies, between which questions of boundary had been much 
mooted and much discussed before her lords of the committee of 
trade and foreign plantations ? If her officials were not at first in- 
formed, was not the royal observatory at East Greenwich, then es- 
tablished nearly a centuary — from 1675, Newton had made all his 
discoveries, and died thirty-six years before ; he had wrought out the 
puzzles of the great circle of the armillary sphere and informed the 
world how many English statute miles were to be allowed to a degree 
of longitude in the latitudes of Maryland and Virginia. Halley had 
succeeded Flamsteed as Royal Astronomer, and had died twenty-one 
years before this map was made ; and is it to be supposed that Bowen, 
the royal geographer, would not seek the most authentic and con- 
clusive information fiom the law officers of the crown, and from the 
state paper offices, to authorize him to lay down the boundary of 
Maryland and Virgiuia in 1763, as ''determined," and as those 
provinces then '' exercised" their jurisdictions? Whether he did or 
not. Great Britain so " determined," and so solemnly, that her de- 
termination there was notice given to other powers with whom she 
treated by which she was bound, and bound too in matters of much 
importance. All her provinces varied from each other in many par- 
ticulars of the regulations of commerce and trade and navigation, 
and the vessels of France required the information as to parts of what 
province they entered and what regulations they were t6 observe. As 
to what the treaty making poioer of Great Britain could do with the 
charters of her provinces, even to annihilate them, it is supposed, ad- 
mits of no question or debate. Great Britain would have ceded both 
provinces to France as easily as she acquired Canada, and certainly 
she could, as she did, fix their bounds. 



XIII. 

After the restoration of the Lord Proprietor's title in 1715, and 
possession of Maryland, and after the treaty of Paris in 1763, there 
was an uninterrupted period of peace and comity between her and the 
royal province of Virginia, as long as they were colonies. The boun- 
dary on the Eastern shore was by all the inhabitants of both colonies 
known to be settled, and there was no collision at Annamessex until 
lately. The Quakers, and if there were any Papists there left on the 
marshes or hammocks South of the Westernmost angle of Watkins 



128 

point, and North of Pocoraoke sound, and West of that river, they 
were not disturbed by any religious persecutions, and they were too 
few and too inaccessible or inconvenient to the officers of the Virginia 
laws to be troubled by tax gatherers even, or by summons of any sort 
of public service ; but that the mouth of what was then and now 
called Little Annamessex, was always known and claimed to be in 
Virginia, in the latter end of the 18th and beginning of the present 
centuary, is known to many now living in Accomack, Virginia. True, 
that for the reasons already mentioned of their location, they have not 
voted in Virginia or paid taxes, or even in that time been treated or 
have acted as citizens of Virginia. But time does not run against a 
sovereign or state as to boundary ; and Virginia has always continued 
to claim the tongue of land above Cedar straits and Pocomoke sound 
by holding and keeping her territory on the South end of Smiths 
island West ; and as will be shown, she patented the whole extent of 
this territory up to 1763, and to leading citizens of Maryland. See 
her patents to Daniel, of S. T. Jenifer, and to Daniel Jenifer, (a re- 
gister of the land office of Maryland,) and Aune Toft, his wife, and 
Wilbourne and others, and to John Nelson and Robert Pitts, hereto 
appended. The grants to some of these patentees were up to Nanti- 
coke sound. By the by, the name Herring island, on the coast survey 
map is erroneous : — it should be Heme or Hern, (for Heron island.) 
The populations of Maryland and Virginia were too similar in man- 
ners and customs and kinds of possessions, and too cavalier alike in 
their tone, not to assimilate and affiliate in the most cordial relations. 
The Howards of Maryland had been too close comrades of the Wash- 
tons of Virginia, for the Maryland and Virginia people in their homes 
and habitations and associations, as well as in their continental lines 
durino- the night of the revolution. The battle of the barges at and 
off Tangier and Watts islands in the Chesapeake bay, the very last 
battle of that revolution, was fought by Accomack, and Pocoraoke, and 
Annamessex people, volunteers who came together like brothers and 
neighbors and friends, under the illustrious Whaley, a commodore of 
Maryland, who fell in bloody fight, and whose bones now lie not un- 
honored at Onancock in Accomack. The glorious good he did was 
not buried with his bones : — will not Maryland gratify Virginia by 
giving them yet a monumental stone ? 

Accoraac county in Virginia and Somerset in Maryland had jointly 
contributed to build and incorporate their first academy of learning 
(Washington academy, near Princess Ann in Maryland). Land was 



129 

given to it in Accomac; and when population so increased that Acco- 
raac could build her own academy (Margaret acadeni}', near Pungo- 
teague in Virginia), the legislature of Virginia, in 1790, authorized 
it to be sold and divided between the two academies. Such was the 
feeling of amity between the best of neighbors. And these people 
then cared not which state they were citizens of; but those of Cedar 
straits were most convenient to Maryland. The fisheries and fowling 
were superabundant, and until about forty years ago they "lived and 
let live," in the most friendly neighborhood and free interchange of 
fisheries as well as comities of every kind. We repeat, that it was 
not until oyster catching and planting and packing became so profit- 
able and worth so much, that any "sacra fames auri" ever disturbed 
that old-time state of kindness between these people. But since, 
Virginians have been arrested and tried in Maryland for fishing in her 
own waters. 

The delegates and representatives of the several counties and cor- 
porations of Virginia, on the 29th day of June, A. D. 1776, reciting 
their grievances' under the detestable and insupportable tyranny of 
George III., king of Great Britain, unanimously declared the inde- 
pendence of the colony, and ordained and adopted the first constitu- 
tion of state government in America. Heroic as was that age, there 
was no act of men or states more magnanimous and exemplary than 
the adoption by Virginia of the 21st clause of that first constitu- 
tion, to wit : " The territories contained within the charters erect- 
ing the colonies of Maryland, Pennsylvania, North and South Caro- 
lina, are hereby ceded, released and forever confirmed to the people 
of those colonies respectively, with all the rights of property, ju- 
risdiction and government, and all other rights whatsoever which 
might at any time heretofore have been claimed by Virginia, 
except the free navigation and use of the rivers Potowmack and 
Pocomoke, with the property of the Virginia shores or strands bor- 
dering on either of the said rivers, and all improvements which have 
been or shall be made thereon. The Western and Northern extent of 
Virginia shall in all other respects stand as fixed hy the charter of 
King James the 1st. in the year 1609, ond by the jniMic treaty of 
peace between the courts of Great Britain and France in the year 
1763, unless, by act of legislature, one or more territories shall here- 
after be laid off and governments established Westward of the Alle- 
ghany mountains. And no purchase of lands shall be made of the 
17 



130 

Indian nations but on behalf of the public, by authority of the gen- 
eral assembly." 

This generous and gratuitous clause of constitutional conveyance to 
her sister colonies, in the act of taking upon herself the responsibili- 
ties of independence, whilst they were yet colonies, and she had no 
guarantee that they would back her example, is unexampled in the 
history of revolution. But she excepted the free navigation and use 
of the Fotowmach and Pocomoke rivers, with the property of the Vir- 
ginia shores and strands. And her Western and Northern extent she 
reserved, as fixed by the charter of 1609 and by the treaty of 1763. 
The latter had modified the extent of her grant in respect to Maryland. 
She could not, after the treaty, claim to the extent of her grant West- 
ward. She had claimed the river Potomoke for its whole extent, and 
she had claimed both shores of the Pocomoke, including its mouth, as 
high up as the Calvert and Scarbrough line ran across the Pocomoke 
river. Maryland was fully aware of this cession and reservation; but 
was not satisfied, and claimed more. She knew of the Hopton grant 
and of the Calvert and Scarbrough line, and that Virginia had there- 
fore claimed both; and yet of the Northwestern territory between the 
Ohio and Mississippi rivers, she claimed a share. 

And this brings us to 

XIV. 

The cession by Virginia of her immejise Northwestern ter7^itory. 

She abjured her colonial state without waiting for others to move, 
" set the first ball of the revolution in motion " from her old magazine 
in Williamsburg, which never ceased rolling until after ricocheting all 
over the continent; it stopped at Yorktown, within twelve miles of 
where it started, on her own soil, and then, after independence was 
declared, set to with all her mighty men to form the confederation of 
the free, sovereign and independent states. The legislatures of the 
thirteen colonies, having approved and authorized their represent itives 
in congress to ratify the articles of confederation agreed on by the 
delegates of the ''United States of America" in congress, the 15th 
November, 1777, congress ratified them on the 9th July, 1778, then 
voting Mass'ts bay and Rhode Island and Providence Plantations, Con- 
necticut, New York, Virginia, South Carolina, only six states. North 
Carolina, 21st July, 1778; Pennsylvania, 22d July, 1778; Georgia, 



131 

24th July, 1778; New Hampshire, August 8th, 1778; New Jersey, 
November 26th, 1778; Deleware, May 5th, 1770, and Marylaiul not 
until March 1st, 1781. Why did Maryland decline or fail to join the 
confederation of states for three years and four months? She de- 
clined until the states which held the new lands of the West included 
in their ancient charters consented to cede them to the United States 
for the union and common benefit of all the states. See 10th Heu- 
nings Stats, at Large, appendix "Resolutions and State Papers," pp. 
547 to 567 inclusive. The circular of the president of congress, Sep- 
tember 10th, 1779; the declaration of Marjdand, December 15th, 
1778; the instructions of that state's general assembly to her dele- 
gates in congress at the same date; " the remonstrance of the general 
assembly of Virginia to the delegates of the United American States 
in congress assembled, the 14th of December, 1779 "; the ''act of the 
state of New York," to facilitate the completion of the articles of 
confederation and perpetual union, passed 19th February, 1780, the 
" recommendations of congress for cessions of Western territory, Sep- 
tember 6th, 1780, these and other causes influenced the state of Vir- 
ginia to pass her resolutions of January 2d, 1781, ''for a cession of 
thejands on Northwest side of Ohio to the United States" "on cer- 
tain express conditions and reservations," among which were the fol- 
lowing, to-wit : 

" That all the remaining territory of Virginia included between the 
Atlantic ocean and the Southeast side of the river Ohio, and the 
Maryland, Pennsylvania and North Carolina boundaries, shall be 
guaranteed to the commonw<^aIth of Virginia by the said United 
States." 

" That the above cessions shall be void and of none effect unless all 
the states in the American Union shall ratify the articles of confed- 
eration, heretofore transmitted by congress, for the consideration of 
said states." And these resolutions caused and induced Maryland, 
within the then next sixty days, to join the confederation the 1st 
March, 1781." When granted a common benefit in all the North- 
western territory of Virginia, and accepting its reservations and con- 
ditions, by joining the confederation in consideration of the grant, is 
she not estopped from denying or disputing "the remaining territory 
of Virginia ? " Can she righteously say now that the grant to Lord 
Hopton was bad and not recognized under the treaty of 1763? that it 
was not incladud in Virginia's reservation? that the line of Calvert 
and Scarborough was never run, or, if run, that it now can not bo 



132 

identified and located? That the treaty of 1763 did not finally fix 
the limits between her and Virginia ? or, if they even were not fixed 
as Virginia claims, can she say that Virginia did not so mean when 
she ordained her constitution of 1776 and passed these resolutions 
with these expressed reservations? Did not Maryland mean she would 
not, whether she legally could or not, dispute the remaining territory 
of Virginia, as she ( Virginia) claimed it, when she (Maryland) ac- 
cepted a grant worth millions more than the small reservations named? 
True^ congress afterwards wisely declined the guarantee on the part 
of the United States, leaving the questions of boundary to be decided 
and agreed between the states themselves, or the proper tribunals to 
decide them judicially if not agreed. And Virginia executed the ces- 
sion without the guarantee of the United States; bat was not Mary- 
land bound, by accepting the cession, or her part of the cession, from 
Virginia, in consideration of joining the confederation? Did she not 
get millions over her " quid pro quo? " Did she not assent? Is she 
not morally and legally estopped from claiming now what she knew 
Virginia then claimed to be part of hfr remaining territory? Let 
justice and equity and considerations higher than territory or any 
other price plead the reply. See Tazewell's Fragment, the last report 
appended. The Report of Congress. 11 H. Stat, at Large, appen- 
dix 567. The Deed of Cession, Id., 571, made Ist March, 1784. 

XV. 

Having taken this general review of the history of boundaries be- 
tween Virginia and Maryland, which it is presumed will control the 
decision on the fact and the law of the case, we now proceed to state 
and comment on the incidental facts which may prove tests of the 
history. 

I. Patents. 

We must premise that the commissioners on the part of Virginia, 
who have heretofore acted on this question of boundary on the Eastern 
shore of the Chesapeake bay, have overlooked, or not been informed 
of a fact, which would have shown them the Eastern shore boundary 
in limine ; a stranger to the history of the counties of Accomack and 
Northampton, or one ignorant of it, might well be deceived in 
looking for the patents of Virginia granted to her inhabitants, on her 
part of the peninsula of the Qhesapeake, The colony of Virgii^i^ 



133 

was divided in 1634 into eight shires, and Accomack was one of them, 
consisting then of the whole of Virginia's part of the peninsula. By- 
act 13th of the year 1642-3, the name of the whole was changed to 
"Northampton." For the royal grants to 1642-3, one must look to 
the index of Accomack. After that period the index of Northampton 
must be looked to. Accomack resumed her original name, (when is 
not shown by Henning,) and continued to be called Accomack to 
nearly the end of colonial times. See 1 H. S. at L., pp. 234, 249, 
and index of that volume under head "counties." A regiment was 
authorized to be raised for Accomack and Northampton by act chap. 
1, December 1, 1775, showing they were then divided into Accomack 
and Northampton. See 9 H. S. at L., p. 76. Northampton was 
probably divided under a general law providing for the division of 
frontier counties, passed in the 3d session of the general assembly 
from 1702 to 1705. See 3 H. S. at L., p. 284. But this is imma- 
terial, except to note how the patents of the Eastern shore have been 
overlooked. Seeing no name of " Northampton " adjoining Maryland 
on the maps, and "Accomack" there always, the Accomack index 
was heretofore looked to aJone. By examining the index for both of 
those counties, we find patents for every foot of the territory from the 
Western shore of Smiths island, in the Chesapeake bay, to the Eastern 
shore of Assateague island, on the Atlantic ocean, on the whole 
course of the divisional line run by Calvert and Scarbrough in 1668. 
To begin on the Chesapeake side : 

^^ Patents issued during the Regal Government of Virginia, Accomack 

County." 

To Robert Pitts, October 2, 1663 : 3,000 acres North by Pocomoke 
and West by the bay. 

To Charles Scarborough, April 4, 1668 : 600 acres, the Western 
islands of the Chesapeake bay. 

To Henry Smith, October 9th, 1667 : 1,000 acres, Pitscraft^ on 
Smiths island, the other half of the land granted to same man for 
part of same tract and the patents of each state, callhig a divisional 
line of Maryland and Virginia. That tract, 2,000 acres, was only 
to be divided by a right line, East and West, so as to lay off 1,000 
acres on each side. 

To John Taylor, October 27, 1673 : 34 acres, Little Watts island. 
This is the island which the present commissiooers conterid was pro's 



134 

bably the end of Watkins point, on the theory of great washings 
away. Here is proof it was an ishmd in 1673, and though little then, 
there now it remains. 

To Thomas Welburne, April 4, 1678 : 83 acres, Feaks or Fox 
island, North of Watts island. This is a group of islands, which the 
same theory claims to have been main land on part of Watkins point. 

To John West, November 25, 1679 : 2,500 acres, embracing Georges 
island in the Pocomoke river ; showing that Virginia owned the islands 
at the mouth of that river. 

To John Ciistis, April 20, 1680 : 100 acres, Cobham's island in 
Pocomoke river, showing same. 

To Capt. Wm. Custis, April 17, 1686 : 800 acres on Feaks or Fox 
island. 

To John Carter, October 26th, 1699: 130 acres Fox North island. 
This is the first South of cape at Cedar straits. 

To McKenny and Jenkins, April 25th, 1702: 150 acres South end 
of Watts (Big Watts) island. 

To same, same date: 24 acres Gabriel, alias Watts (Little), alias 
Goat island. 

To Francis McKeunie, Arcadia Melburne, Daniel of St. Thomas 
Jenifer, and John West, October 23d, 1703 : 3,804 acres. The islands 
lying North of Tangier island. Heme or Hern (contraction of Heron, 
now laid down as Herring on coast survey map) island, and the six 
islands (Smiths island cut into thoroughfares), &c.; and the begin- 
ning and ending of this grant is near Nanticoke sound. Tangier and 
Smiths islands, and their groups of smaller islands, form Tangier 
sound as far North as Kedges straits between Smiths island and South 
marsh. South marsh and Bloodswarth island, from Nanticoke sound 
up to Hoopers straits, called by Smith and by the act of Virginia of 
1663 the Limbo. At the Eastern head of Nanticoke sound is Monie 
bay, into which the only Wicommico river on the Eastern shore and 
Monie river empty; and Monie bay and Nanticoke river and Fishing 
bay all empty into Nanticoke sound. The chart of the coast survey 
lays it down as a part of Tangier sound, but that is an error. Those 
charts are not to be relied on for names, though very accurate and re- 
liable for topography. South of Monie bay is Manoakin river, empty- 
ing into Tangier sound; and there on the Manoakin Col. Scarbrough 
had his meeting with the Quakers and others, over whose doors he put 
the "broad arrow" (the mark of royal goods) in 1663. In a right 
line West of the mouth of the Manoakin is South marsh, and near 



135 

Nanticoke sound was the initial and terminating mark of this patent 
to Daniel of St. Thomas Jenifer and Francis McKennie among others. 
One of them among the wealthiest and foremost men, and the other 
among the foremost of divines of Maryland. One of them, Jenifer, 
lived at or near Annapolis, the other on the Eastern shore, not far 
from the locality of the patent. One of these co-}>atentees, Colonel 
John West, of Accomac, was a considerable man of his day, often in 
the house of burgesses of Virginia. Is it to be supposed that they 
did not know which was Maryland and which Virginia territory, or 
that they didn't know, or had forgotten, where the line of 1668 was 
run only thirty-five years before — that it was not far from Nanticoke 
sound .^ The patent speaks broadly, " near Nanticoke"; the meaning 
only of which was, that they were to go to the line between Maryland 
and Virginia, and when there they would be near Nanticoke. They 
may have erred if they went to South marsh, but if they went to 
Smiths island only, that is enough to show that the pretensions of 
Maryland now are contradicted by two of her most respectable citi- 
zens. Then it can't be said that these men conspired to take territory 
from Maryland. If John West was so disposed, there were two in- 
telligent sons of Maryland to protect her interest. The truth is, that 
the line of 1668 cuts now not far from Nanticoke sound, and far North 
of Cedar straits, as proved by this patent. 

To Eliza Scarborough and Arthur West, May 2, 1713 : 900 acres: 
All Tangier island. 

To John Marshal], June 16th, 1727: 170 acres on the bay side, 
&c., "to a maiked oak, being one of the division trees betiveen Vir- 
ginia and Maryland." 

Commonwealth's Grants. 

To Sacker Nelson, May 4th, 1787 : 476 acres, Northerly and East- 
erly on Pocomoke sound, Southerly on the thoroughfare. Westerly on 
Tangier sound. He is the fountain of tradition, whose memory lives 
immortal in the title of "King Nelson," among the islands and ham- 
mocks of Tangier sound and Annamessex. See deposition. He was 
a grantee of part of Fox islands in Virginia. 

To Richard Evans, October 31st, 1791 : 47 acres at Queen's Ridge, 
on the bay side, at a point of marsh near Tangier sound. 



136 



Patents West of Pocomoke, cover 13,784 acres. 

These patents embrace 13,784 acres, and cover every acre of land 
and water South of the Calvert and Scarbrongh line of 1668, main 
and islands, between the Chesapeake bay and the Pocomoke river ; in 
other words, the whole of the disputed territory West of the Poco- 
moke river. Robert Pitt's patent calling for its North line from Pitt's 
creek, on the divisional line of the colonies to the bay, granted every 
foot of land on the main between that divisional line and the Poco- 
moke river and sound. The other patents embrace all the islands of 
the Pocomoke sound, and of the Chesapeake bay and Tangier sound, 
from Watts island to near Nanticoke sound. All of these granted by 
Virginia North of the Calvert and Scarbrough line, prior to 1668, 
were expressly saved to the patentees by the articles of agreement 
signed and sealed by Calvert and Scarbrough. Any grants made by 
Virginia after that agreement in 1668, North of that line, were null 
and void to the extent of the part North : but the patents of Lord 
Baltimore, issued prior to 1668, for lands South of that line, were 
not saved by the agreement hetiveen Calvert and Scarbrough to the 
patentees of Maryland ; they retained no title whatever in any name, 
or by any authority, and all patents granted by Lord Baltimore, sub- 
sequent to 1668, South of that line, were of course void. So much 
for the main territory West of Pocomoke river and North of Poco- 
moke sound and East of Tangier sound, and for the islands of the 
bay and Tangier sound and Pocomoke sound. 

We now come to the territory East of the Pocomoke river, begin- 
ning at that river, where the Calvert and Scarbrough line runs East 
from Watkins point on the West^ " over Pocomoke river." 

To- Robert Holston, (erroneously here Houston,) April 5th, 1666 : 
500 acres ; bounded by the Pocomoke on the Northwest, and by 
Holston's creek. It was to near this Holston's that the line of Calvert 
and Scarbrough run. 

To Col. E. Scarbrough, September 10, 1664 : 2,000 acres, South 
by Crooked creek, near Pocomoke river. 

To John Wallop, June 10th, 1664 : 400 acres at Pocomoke. 

To Robert Pitts, October 2, 1663 : 3,000 acres ; North by the Po- 
comoke and West by the bay, (meaning Tangier sound or bay.) 

To same, March 12th, 1662 : 1,000 acres at Pocomoke. 

To J ohn Williams, April 5th, 1666, (same day as Robert Holston's) : 



J 37 

Patent 500 acres, (same quantity as Robert Holston's,) W. S. W. by- 
Robert Holston's ; N. West by Pocomoke river. 

To Thomas Davis, April 5th, 1666 : 400 acres on Pocomoke. 

To James Henderson, April 5th, 1666 : 400 acres next Thomas 
Davis on the Pocomoke river. 

To John Davis, April 5th, 1666 : 700 acres. North by Pocomoke, 
West by Davis Branch. 

Henry Smith, April 5th, 1666 : 1,700 acres on Pocomoke. 

Ratlcliffe, November 9th, 1666: 1,200 acres; Pocomoke, on 

Crooked creek. 

To Daniel Forecraft, October 30th, 1669 : 600 acres. South side of 
Pocomoke river. 

D. Browne, October 16, 1672 : 3,700 acres, Jolls, (now called Jolly's 
Neck.) Pocomoke river, 

Capt. S. Littleton, September 9th, 1674 : 400 acres at Pocomoke, 
formerly, &c., &c. 

John Washburn, April 30th, 1679 : 600 acres, Pocomoke river, M, 
Lester's land. 

Col. S. Littleton, April 30th, 1679 : 150 acres on the Forehead 
Neck, N. of King's creek at Pocomoke, on the divisional line. 

John West, November 25, 1679 : 2,500 acres, Pocomoke, North of 
Messongo creek, and embracing Georges island in the Pocomoke river. 

John Tankard, October 2, 1680 : 2,000 acres, between Pocomoke 
and Chingoteaque on the main. 

Colonel John Custis, September 22d, 1683 : 4,600 acres, at Jolles 
or Tolls neck. Eastern part, 2,000 acres, patented by Edmund Scar- 
brough. 

Adam , April 20th, 1686 : 600 acres at Pocomoke. 

To William Brittingham, November 7th, 1700 : 96 acres, begin- 
ning at Pitts alias Kings creek, on the divisional line, &c., &c. 

Nathaniel Littleton, October 24th, 1701 : 150 acres on Forehead 
neck, North of Kings creek, on Pocomoke. 

Captain Daniel Jenifer, of Maryland, October 2, 1680 : 2,500 
acres, between Crooked creek and the Pocomoke on the North Mes- 
sango. 

In these 23 patents, granted about the date of the Calvert and 
Scarbrough line, some shortly before and some shortly after 1668, we 
find 31,300 acres at and on the divisional line where it ran over the 
Pocomoke river, and thence to the mouth of the Pocomoke and the is- 
lands of the Pocomoke river, and also between the Pocomoke river and 
18 



138 

Chingoteague creek East. Many of these patents name the divisional 
line of the two colonies as one of the lines of the patents. 

Next following the line of Scarbrough and Calvert, running East, 
we find the following patents : 

To Daniel Selby, November 9th, 1666 : 600 acres on the Swansea- 
cute alias Great Mattapony. 

To Edward and John Smith, November 9th, 1666 : 500 acres on 
the Mattapony. 

John Pike, November 9th, 1666 : 400 acres North of Dan'l Selby, 
at Mattapony. 

To Daniel Jenifer and Ann Toft, his wife, February 12, 1671 : 
11,300 acres, sea-board. Stoktlys branch, 5,000 acres. Neck be- 
tween Chingoteague and Swanseacute on the divisional line. 

J. Wallop, alias, &c., April 9, 1674 : 450 acres, Great Mattapony 
alias Swanseacute, on the divisional line, &c. 

Major Edmund Bowman, October 5th, 1674 : 2,264 acres North 
side of Swanseacute alias Great Mattapony on divisional line. 

These six patents granted 15,514 acres at and near Swanseacute on 
the divisional line. 

Next following the line of Calvert and Scarbrough East to the shore 
of the main land on the sea-side : 

Colonel E. Scarbrough, June 22d, 1664: 3,000 acres North of 
Chingoteague creek. 

Lieut. Col. John Wallop, April 20th, 1670 : 3,050 acres, Southside 
of Chingoteague creek. 

Daniel Jenifer, of Maryland, February 12th, 1671 : 11,300 acres, 
Stokelys branch, sea-board. 

Ann Toft, of Accomack, Daniel Jenifer's wife, February 12th, 
1671: 5,000 acres, neck between Chincoteague creek and Swansea- 
cute creek "on the didsional line of Maryland and Virginia." 

Samuel Taylor, April 9th, 1674 : 700 acres, Chincoteague creek. 

Edward Robins, May 27, 167| : 680 acres at Chincoteague, be- 
ginning at divisional line between Virginia and Maryland. 

Col. S. Littleton, April 4th, 1678 : 1,000 acres at Chincoteague 
creek. 

Thomas Gascoine, July 15th, 1715 : 1,093 acres, head of Chinco- 
teague creek. 

These eight patents, between Swanseacute and the sea-side of the 
main, containing 24,730 acres, at and near Chincoteague creek, on the 
divisional line, &c. 



130 

Then following the Calvert and Scarbrou^h line East to the islands 
between the main land and the sea beach of Assateague island. 

Hill Drummond, April 24th, 1700 : 96 acres, Popes island, on di- 
visional line. 

Thence to the Atlantic shore on the beach of Assateague island :• 

Col. Daniel Jenifer and Wm. Stevens, April 16, 1683 : 200 acres 
South end of Assateague island on the divisional line. 

Daniel Jenifer, April 20th, 1687 : 3,500 acres, Assateagus island, 
on the divisional line. 

John Morris, April 28th, 1691 : 300 acres, between Chincoteague 
and Assateague. 

Wm. Kendall, April 29th, 1692 : 2,729 acres. Northeast end of 
Chincoteague, including Piney point. 

John Robins, 29th April, 1692 : 2,765 acres, Southwest end of 
Chincoteague island and island of marsh. 

Capt. John Custis, April 21st, 1695 : 250 acres. Northern end of 
Chincoteague island. 

Wm. J. Aydelotte and Benj. Blades (one of the present commis- 
sioners of Maryland), 30th July, 1841 : 880 acres on Assateague 
island. 

These seven pati'uts granted 10,624 acres on Assateague and Chin- 
coteague islands to the ocean, between it and Popes island, two of 
them on Assateague calling for the divisional line between the colo- 
nies of Virginia and Maryland. I have cited those on Chincoteague 
island to show that no colonial line ever cut that island. Its North 
end is nearly up if not quite to the line of 38° N. L. By the best 
charts furnished by the coast survey office, the parallel of 38° passes 
the North end of Chincoteague three-quarters of one mile, and the 
Calvert and Scarbrough line cuts Assateague island North of that 
parallel two miles. It is just about as far North of that parallel on 
the sea side of the peninsula as it is South of it on the bay side 
thereof A right line from Smiths point to Swanseacute, or from the 
same point to the terminus of the Scarbrough and Calvert line on the 
Eastern shore of Assateague island, either will cut the main land at 
Cedar straits. Drawn from Smiths point due East it terminates on 
the sea shore South of Chincoteague island, and it would give to 
Maryland an average breadth of eight miles of territory East of the 
Pocomoke river to the sea, which at no time did she ever claim. East 
of that river to the sea South of the Calvert and Scarbrough line, 
Maryland never laid a patent. There her citizens -on the line pay 



140 

taxes in both states now; and Mr. Aydelotte, of this commission, by 
accepting his patent on Assateague island — anywhere on it — recog- 
nizes the fact that the Calvert and Scarbrough line runs North of an 
East line from Cedar straits or from Smiths point. 

.Besides the foregoing patents from the Accomac Index, we add the 
following from the Northampton Index : 

Miles Gray, March 26th, 1672: 400 acres, branch of Great Matta- 
pony, alias Swanseacute. 

Daniel Jenifer, February 12th, 1672 : 5,000 acres, but called 
Chincoteague, granted to E. Scarbrough in 1664. Residue lying on 
the N. W. side of the 3,000 acres. 

William Whitington, October 2d, 1672 : 5,000 acres. All Chinco- 
teague island. 

Capt, John West, October 3d, 1672 : 1,000 acres at Chincoteague 
(on the main), South by Capt. Richard Hill and Northeast by Capt. 
Daniel Jenifer. 

Thomas Nickerson, October 9th, 1672 : 400 acres at Chincoteague, 
adjoining John Wallof. 

John Robins, October 7th, 1672 : 500 acres at the seaside, South- 
west by the land of Southey Littleton, Northeast by the divisional 
line between Maryland and Virginia. 

These patents granted 12,300 acres at and near the line. 

The quantity of land in the grants of these different sections 
amounts to 95,952 acres, nearly one hundred and fifty square miles, 
on a line from the Chesapeake bay to the ocean, forty-five miles in 
length from the Western shore of Smiths island to the Eastern shore 
of Assateague island. And the part of this line North of the 38th 
parallel, lying East of the Pocoraoke river, Maryland don't pretend 
to dispute, vvdiilst she claims all South of the line West of the Poco- 
moke river and North of the Pocomoke sound, though the line there 
is South of the 38th parallel. 

These are strange facts, to be accounted for only by oysters ! Vir- 
ginia granted an average of three and a third square miles for every 
mile on this line. 

County Bound8. 

We can't find any North bounds of Accomack in Virginia, except 
the Virginia and Maryland line. But the commissioners on the part 
of Maryland have produced a commission from the proper authorities 
of the county of Somerset, Maryland, to certain commissioners, to 



141 

''lay off so much of Siuillis island as lies within the body of Som- 
erset county aforesaid, into a separate and additional election district, 
before the 1st April, 1835. Commission is dated 8th April, 1835. 
Return dated 16th June, 1835." " In pursuance of the said order, 
we have viewed, laid out, and return as follows for said election dis- 
trict, to wit : Beginning on the East side of said island, at a place 
well known by the name of 'Drum point;' thence Westerly cross to 
the bay to a hammock called Sassafras, lying on the bay shore ; thence 
by and with the bay up to Kedge's straits ; thence by and with the 
sound to ' Drum point.' And that we at the same time have elected 
the Methodist meeting house as the most suitable and ci-nvenient place 
for holding the elections in said district." 

By embracing all of the island which laid in Somerset county, it 
embraced all of it lying in Maryland. Somerset county extended 
North to the Nanticoke. 

Here then we have a late report of Somerset's own commissioners 
setting forth all of Smiths island in Maryland. The district bounds 
began at " Drum point." See the charts of coast survey. " Drum 
point" is North of Little Annamessex river on the main. It is but 
one mile south of the 38th parallel of latitude, and below Barnes 
point, on the East and West line of which the stones (Potomac 
stones) apparently were found, said to be boundary marks between the 
two states. Yet John Oullen, (see his deposition,) one of the com- 
missioners, swore before these present commissioners that he always 
deemed and held Ho'-se hammock, on Smiths island, over two miles 
South of " Drum point," to be in Maryland, and Maryland appointed 
a justice of the peace residing there as late as . (See deposition.) 

But John Cullen ought to have known better. He was the justice 
who arrested John Tyler, a Virginian, lor catching oysters at Filleby's 
Rock, North of the Great Rock, arrested just off Horse hammock, 
in the schooner Fashion. Tyler was acquitted by the Somerset court 
on the ground he was not oystering in Maryland waters ; sued Cullen 
in the Circuit court of 8th judicial circuit of Maryland, held 3d 
October, 1854, for arresting and detaining him and his vessel, and 
recovered a judgment for $1,000 damages and costn. See records of 
the court appended. 

This was as late as 1854, and the Hon. Isaac D. Jones, Esq., was 
one of the counsel in the case for Cullen. See the two records. 

Again, the commissioners of Maryland exhibited " Maryland council 



142 

proceedings, Liber H. H., folio 268. Commission to Stephen Horsey 
and others, to lay out a county, bounded on the South by a line drawn 
from Watkifis point, being the North point of yt bay into which the 
river Wighco, (formerly called Wighcocomaco, and afterwards Poco- 
moke, and now Wicocomaco again,) &c., to the ocean on the East, 
Nanticoke river on the North, and by the sound and Chesp. bay on 
the West, to be erected into a county, by the name of Summerset, 
in honor of our dear sister, Lady Mary Summerset." 22d August, 
1666. 

Now this clears away all mists from these marshes obscuring doubts 
about where Watkins point was and is. Smith's Map placed it ex- 
actly where this council of Maryland describes it, and exactly where 
Calvert and Scarbrough ascertained it to be in 1668. The point de- 
scribed by this paper is undoubtedly, the point of Watkins point at 
Cedar straits. Calvert and Scarbrough did not start at that part of 
Watkins point, but at the extremest part of its Westernmost angle. 
This is tested by the line being a right, East line. Then we have 
certified beyond all peradvent.urd that Maryland authorities, met'-opol- 
itan and county, colonial and state, have fcnown where Watkins point 
was all the time ever since 1666. That happened to he exactly two 
years before the commissioners, Calvert and Scarbrough, 1668, de- 
termined the part of Watkins point from which the line should be 
run East, ordered by the charter of Maryland to b.; a right line. 
Cedar straits never was and is not now the Westernmost angle of 
Watkins point, and did not draw the commissioners, in 1668, that far 
South; but the legal and logical eftect of their " articles of agree- 
ment " was to draw the Southern boundary of Somerset county from 
Cedar straits up to the North headland of Little Annamessex river to 
another part of Watkins point. And what becomes of all the spec- 
ulation about a proclamation of Governor Harvey, of Virginia, recog- 
nizing Maryland's right of Indians to traffickdown to Onancock, below 
Little Watts island? What of the theory of the washing away of Wat- 
kins point.^ What of the traditions of the sayings of King Nelson — 
by the by, in justice to his majesty's knowledge of the afi'airs of the 
god Terminus, he may ''have known Summerset county's boundary to 
have been fixed on the North end of Big Fox island at the Cedar 
straits in 1666. After these records, can there bo any pretence of a 
doubt about where Watkins point is, or is not all doubt about where 
it was, and is now, a mere pretence.^ 



143 

Again there is another record ot Summerset county, viz. : '' The 
following is among the orders a*>-reed upon by yo commissioners of 
Sammersett countie, this 17th January, 166^." 

"Present : William Stevens" (tiie assignor of Pittscraft to Henry 
Smith), "Captain Wni. Thorne, Mr. James Jones, Mr. John Winder 
and Mr. Henry Boston, Mr. George Johnson and Mr. Ste2)hen Hersi, 
high sheriffs. 

"The highway for the county of Sommerset " from ye landing place 
upon Capt. Goyeder's land in Pocomoke river to Maurumsco dambs, 
near ye house of Robrtrfc Kignitt, and from thence doune to the head 
of Thomas Price's neck to ye head of William Coleburne's creek. And 
from ye head of Will. Colburns creek to Watkins point from ye dambs 
yt lyeth by Robert Hignefcts to ye lower dambs yt lyeth at the head 
of Annamesseck river; from thence to ye lower dambs yt lyeth at ye 
head of Back creek of Manokin river, and from thence to ye head of 
Manokin river, and from thence to the head of Wicoconioes creek." 
This is fiom a certified copy. 

Again : Same day and year is — 

^'The hounds of Annamessicke Hundred. 

''Annaraessicke, beginning at Watkins 2Jomt,\u.mung to the mouth 
of Marumsco creeke, up ye Westermosfc side of ye said cree.ke to Ma- 
rumsco dambs, and from Watkins point to the Northpointe of Anna- 
massicke river, and from thence running up ye midst of ye neck of 
land 'called desert.'" 

Thus the bounds of county, of highway, of hundred, of Summer- 
set county, called for Watkins point North of Pocomoke sound. 

Again : See same book of records of the council of Maryland. It is 
supposed Summerset was organized out of Dorchester county, Mary- 
land. Worcester county, adjoining Accomac county, Virginia, was 
laid off from Summerset. Now Worcester borders on Virginia by a 
right line East, and has never been disputed or questioned since 1668. 
Worcester was laid off in 1742 on that part of the line formerly of 
Summerset. Is that, right line "agreeable with" an East line from 
Cedar straits or an East line from the North headland of Little An- 
namessick ? Michler's Map and line, continued by De la Camp, will 
show. 



144 

Somerset's Southern boundary was obliged to be a right or an East 
line. Part of her Southern boundary became the Southern boundary 
line of Worcester county, which was carved out of her. Then, when 
Maryland, in 1742, ascertained the right line for the Southern boun- 
dary of Worcester county, she at the same time conceded and admit- 
ted what was Somerset county's right line on her Southern border. 
If th'^ Scarbrough and Calvert line was the true Southern bounds for 
Worcester county, it was of course the true Southern bounds for 
Somerset county. 

See copy of deed to John Tyler from Henry Smith of the county of 
Summerset, Maryland, 1693, conveying Pittscraft on Smiths island. 
Also, copy of paper found in the possession of Alexander Tyler on 
Smiths island, describing a survey of land, part in Virginia and part 
in Maryland. Also, copy of deed from Elisha Crocket and wife to 
Richard and William Evans, found on Smiths island, dated 30th Au- 
gust, 1828. Also, copy of deed from Jacob Sparrow and Teakle 
Evans, found on Smiths island, dated 24th September, 1844. 

We are informed also by Mr. Aydelotte, one of the commissioners 
on the part of Maryland, that a patent ought to be found from Vir- 
ginia for a part of "Troy point, owned by John Mason; the extreme 
Northeast main land of Accomac; a large body near to Sandy Hill in 
Worcester county, Maryland, part in Accomac county, Virginia, and 
part in Worcester county, Maryland; all now occupied by Judge John 
R. Franklin, who now pays taxes in both Maryland and Virginia." 

If these tests of the true boundaries of the two colonies and states 
of Virginia and Maryland, both on the Eastern and Western shores 
of the Chesapeake, are not sufficient, there are abundant other proofs 
in the county surveys of lands under private deeds; of old vestry 
books of the Church of England in Virginia during colonial times; 
and of ferries (as to which see McDonald's first report), and of maps. 
We have not been able to examine and elaborate any but the last. 
But there is one test which is singular — the location of the Crisfield 
railroad. The line of De la Camp, continuing the Calvert and Scar- 
brough line West from Swanseacute, cuts the Southwestern corner of 
the wharf of that company at Chrisfield. The line passes James 
Taw's house at the head of Somers cove, and cuts the Southwest 
corner of the wharf of the Chrisfield railroad. How came that road 
located at its terminus exactly adpunctura on the Calvert and Scar- 



145 

brough line ? Did Tyl(3r's trial and acquittal, and his recovery of 
$1,000 in Maryland's own circuit court of Summerset in 1854, wherein 
Mr. Crisfield, after whom the town of Crisfield is called, was counsel 
for Tyler of Virginia, and Mr. Jonos, of the present commission, was 
counsel for John Oullen, of the election district commissioner on 
Smiths island, teach the stockholders of that railroad where, to a 
pin's point, to terminate that road .^ If it was accident to terminate 
where it does, it was an accident of so rare occurrence that any insu- 
rance company might insure against its recurrence at the least ap[)re- 
ciable fraction of one per cent. 

We forego such further enquiries. They are vain. We can't treat 
Watkins pt)int, and the part of it from which the boundary line East 
was run "over the Pocomoke river" as a fable or a myth. It was 
agreed, it was sealed, it was approved and established. If not ex- 
actly a due East Hup, it was near enough to a right angle with the 
meridian to be deemed established. It was established by a sealed 
and recorded and admitted agreement, and there is no possibility of 
destroying its identity or doubting its verity. Tradition can't run 
against the record ; ami limitations can't run against a state boun- 
dary. That question the Supreme court of the United States has 
decided in the case between Massachusetts and Connecticut. 

We have but few words to add abuut maps. We will abide by 
Smith's Map of 1629 ; by Bow^n's Map for the Eastern shore botm- 
dary, and by the map of the treaty of 1763 ; and by Augustine Her- 
man's Map, furnished or adopted by Lord Baltimore, and by Lord Bal- 
timore's claim against Penn : that the boundary on the Eastern shore 
was, at the time of 1681, settled by commissioners, and he claimed 
so far South only as Watkins point. The whole matter was conclu- 
ded against all theoretical speculations, and against all time of pos- 
session, and against all traditions, and patents, and ferries, and boun- 
daries of counties, and hundreds, and highways, in 1668, by Philip 
Calvert and Edmund Scarbrough. It is unnecessary, and would be 
but supererogatory to recapitulate the evidences of right to the whole 
river of Potomac. 

Virginia claims the river Potomac to the left or North bank on the 
Western shore, and to Scarbrough and Calvert line on the Eastern 
shore of the Chesapeake, from Point Lookout to the extremest part 
of the Westernmost angle of Watkins point, the promontory formed 
by the North headland of Little Anuamessex river or creek, on the 
19 



146 

Eastern side of Tangier sound, which headland, or promontory, is the 

initial and terminating point of survey between the two States of 

Maryland and Virginia, ascertained, agreed and fixed as described A. 

D. 1668, by and under their joint and several proper authorities, and 

by them approved and adopted. 

HENRY A. WISE, 

D. C. DEJARNETTE, 

WM. WATTS, 

Commissioners on the ]jart of Virginia. 



o. 



APPENDIX 



REPORT OF VIRGINIA COlilSSIOfflRS 



MARYLAND AA^D VIRGmiA BOUNDARY. 



EXTKA.CTS 

FKOM 

LETTER OF E. W. HUBARD TO H. A. WISE. 



The following is a letter from the Hon. B. W. Hubarcl to M'-. 
Wise, on the Boundary Commission, from his residence in Bucking- 
ham, on the subject of the chartered limits of Virginia, as reported 
upon by him when in the H. Reps, of the Congress of the United 
States: 

" SARATOGA, Sept. 6th, 1872. 
Hon. H. A. Wise: 

" My Dear Sir — Your letter asking me whether I had the 
'original' paper written by Mr. Tazewell for me in support of the 
right and title of Virginia to the land West of the Ohio, ceded by 
Va. to the U. States in 1784. 

" Having solicited Mr. Tazewell and Mr. B. W. Leigh to aid me in 
vindicating the right and title of Virginia to the land ceded the U. 
States' Government, which had not only been assailed, but denied 
by Hon. H. Hall, of Vermont, in one or two most villainous re- 
ports ; one a select committee of 5 members, composed of Messrs. 
Goode and Goggin, of Va., and Stanley, of N, Carolina, and Cane 
Johnson, of Tennessee, and Hiland Hall. The Legislature of Vir- 
ginia, nevertheless, again appealed to Congress in behalf our lievol' 
utionary land^bounty claimants, asking Congress to pay the claims 
outstanding ; many being amongst the best claims, as for instance 
for Gen'l Thomas Nelson^ and others, &c. * * 

" These resolutions from our legislature were referred to the Com- 
mittee on Public Lands. When taken up by the chairman of the 
committee, he (Collamer), in a contemptuous and sneering manner, 
held the resolutions up, and asked what member of the committee 
would venture, after the crushing and damaging reports of H. Hall, 



to again recommend to congress to pay those claims ? Each member 
declined, and he appealed to me. Of course I could not; so I 
undertook the task, and decided to do all I could in behalf of the 
state, her citizens, her honor, and rights. Being, as you know, a 
farmer, &c., I ventured to invoke the aid of two of our greatest men. 
a V '■> 

" "When the report was printed by congress I had copy each bound 
for Mr. Tazewell and Mr. Leigh, and I wrote on those copies the por- 
tions furnished and written by each one of them, and forwarded them 
by mail. As requested by Mr. Tazewell, I returned to Mm his man- 
uscript in full. It was very neatly and elegantly written on foolticap 
paper. I may add, that I adopted all Mr. Tazewell wrote, and 
nearly all furnished by Mr. Leigh, and only omitted portions wherein 
both urged the same views; and might well have left out more of Mr. 
Leigh's, as Mr. Tazewell had argued the points. And, even then, 
curtailing Mr. Leigh's contribution, I had to retain portions present- 
ing similar views in some respects to those urged by Mr. Tazewell. 
* * » * o * * 

" Mr. Leigh not desiring the return of his manuscript, it was per- 
haps lost after being copied. Both contributions bore evidence of 
careful study and preparation, and were very well and neatly written. 

jjf -;;;• -;.;- >.;- ■..;- v- >.» 

" See Report, 28th Congress, 1st Session, No. 457; Issue of Scrip, 
&c., &c., May 2d, 1844. 

" Mr. Tazewell's portion of this report commenced at page 3, and 
closed at page 21. 

" Mr. Leigh's commenced at the close of page 21, and closed at 
page 29. 

" Yours truly, 

(Signed) "E. W. HUBARD." 



VERBATIM COPY 



OF A 



CONGRESSIONAL REPORT. 



28th Congress, Rep. No. 457. Ho. of Reps. 

1st Sessio7i. ■■■■'■■ 

ISSUE OF SCRIP, &c. 
[To accompany bill H. R. No. 35?.] 



May 2, 1844. 



Mr. Hubard, from the Committee on Public Lands, made the fol- 
lowing 

EEPOET: 

The Committee on Public Lands, to whom the following resolutions 
were referred — the first on the 4th of January, and the second on 
the 25th of March, 1844, viz : 

1st. ''Resolved, That the Committee on Public Lands be instructed 
to inquire into the expediency of reviving the law authorizing ihe 
issue of scrip upon Virginia land warrants, and of authorizing the 
reception of such scrip, and all other scrip issued by the United 
States in lieu of, or in payment for, land or land claims, to be re- 
ceeived in payment for lands subject to private entry in all land offices 
in the United States." 

2d. " Besolved, That the Committee on Public Lands be instructed 
to inquire into the expediency of making an appropriation for the pay- 
ment of Virginia revolutionary land bounty warrants, which have 
been issued, and are still due, to revolutionary soldiers and officers, 
or their heirs." 

submit the following report : 



6 

That in the investigation of the subject referred to in the foregoing 
resolutions — adopted on the motion of Hon. G. M. Bower, of Mis- 
souri, in the first instance, and on the motion of Hon. D. M. Barrin- 
ger, of North Carolina, in the second place — the attention of the 
committee was particularly called to report No. 436, 1st session of the 
2Gth Congress; and to report No. 1063, 2d session of the 27th Con- 
gress. The first report alluded to, emanated from the Committee on 
Revolutionary Claims ; and the second, from a select committee ; 
both of which, however, were introduced into the House of Repre- 
sentatives by Hon. H. Hall, of Vermont, 

As the subject now to be considered has been several times reported 
upon by committees of the House of Representatives, it is deemed 
proper to examine those reports, with the view of ascertaining the 
various points of difficulty, as well as their relative merits, so that a 
full and fair statement of the case may be presented. The import- 
ance of the subject, no less than the manner in which it has been dis- 
cussed, demands a frank and candid review of some of the more 
prominent allegations urged in those reports against the justice and 
validity of the claims to bountj"- land remainingunsatisfied. Equally 
obnoxious to just criticism is their concluding recommendation, based, 
as will hereafter be shown, upon the most extravagant assumptions, 
and suggesting to this Government, under such circumstances, to dis- 
regard its positive stipulationts. Those reports, after urging various 
covjectural estimates about the number of persons who might be en- 
titled to bounty lands, so as to arrive at the least possible number ; 
then by scanning and denouncing in the most extravagant terms a 
given nuuiber of claims which had been allowed ; — thus, by such a 
combined method of magnifying the proportion of bad claims, and 
diminishing the number of those which were at any time duo, they 
endeavored to dissuade Congress from doing justice. But, notwith- 
standing previous committees have resorted to this double system of 
destroying the claims, yet, even in their oiun estimation, they had 
failed to demolish all of them. However, it seems they had, in their 
opinion, at least, so crippled and damaged them in the public estima- 
tion, that they could with impunity venture to suggest to Congress to 
give the " coup de grace " to all those claims which they deemed m- 
pregnable to their assaults. 

Nor has the learned effort which has been made to impugn and in- 
validate the ancient limits and boundaries of Virginia, and her right 
to the immense northwestern territory which she ceded to the Federal 



Government, escaped observation. This topic, however irrelevant all 
enli<^htened statesmen must admit it to be, has, it seems, been intro- 
duced, along with other no less pertinent considerations, to disparage 
v.'hateverof credit it has heretofore been conceded Virginia justly ac- 
quired by ceding to this Government her northwestern territory, and 
to that extent to impair the equitable rights of the claimants, and to 
justify Congress in refusing to comply with its stipulations enter-d 
into with Virginia at the time she made her deed of cession. In re- 
port No. 3063, 2d session of the 27th Congress, from pages 49 to 63, 
an elaborate effort is made, in the first place, to distort and curtail the 
ancient boundaries of Virginia, in the second, to show that she had no 
chartered or colonial rights ; and in the third, no substantial or valid 
claim to the territory which she ceded to this Government. We pro- 
pose, first, to examine the arguments of Mr. Hall upon each of the 
three points last mentioned, and shall take them up in the order in 
which they are stated. We are induced to take up the several objec- 
tions urged in the reports alluded to, not in the order in which they 
are presented, but rather in their chronological order, because it ena- 
bles us to present a more connected and intelligible view of tiie sub- 
ject which has been referred to ns. To appreciate more fully the 
bearing which it was designed the points just stated should have on 
the subject now to be considered, we will cite the proposition dis- 
cussed in report No. 1063, page 43, which gave the author of the re- 
port a pretext for indulging in the course of argument we propose 
first to review. It was as follows: '■^ That the United States are 
under obligations to Virginia to satisfy the claims." 

It seems to have been supposed, by the committee formerly having 
tbis subject under consideration, from the very great extent of learn- 
ing devoted to this branch of their argument, as presented in their 
report, that, if they could divest Virginia of all tenable right and 
title to the territory which she ceded to this Government, her citizens 
would necessarily be deprived of one of their strongest reasons for ap- 
pealing to the equity and liberality of Congress. But it will readily 
be perceived that any ^' ex parte" and laborious effort made by a 
committee of the House of Representatives to invalidate the just 
claim of Virginia to the land which she ceded, and thereby to detract 
from her dignity and character, imposes upon Congress the duty of 
''audi alteram fartem" Indeed, it is most obvious that, unless this 
is done, a decision cannot be impartial or just. After a full examina- 
tion of this branch of the subject, having arrived at conclusions en- 



tirely the opposite of those expressed in the reporb under review, we 
proceed to advance the facts and reasons which have irresistibly led us 
to differ with Mr. Hall '' toto ccelo." 

To determine the original limits of the country now called Vir- 
ginia, it is necessary that we should go back to a period of history 
antecedent to even the discovery of this region. In this history, we 
shall find that the whole continent of North America fronting upon 
the Atlantic ocean, was called Virginia, long before any portion of 
that particular district that now bears this name had been discovered. 
The Spaniards, who had first discovered the southern part of this 
continent in 1512, had named it Florida, on account of the gay and 
beautiful appearance of the great variety of flowers they found flour- 
ishing there. But afterwards, in 1584, when the English also dis- 
covered it farther to the northward, Queen Elizabeth was pleased to 
name the country Virginia, as a memorial that this happy discovery 
had been made in the reign of a virgin queen.— (See Hakluyt, vol. 
iii, page 246.) 

By letters patent granted by Queen Elizabeth to Sir Walter Ealeigh, 
which bear date March 26, 1584, she gave to him, and to his heirs 
and assigns, " free liberty to search for and find such barbarous lands, 
not possessed by any Christian people, as to him may seem good, and 
the same to occupy and enjoy forever." This grant was without any ' 
other definite limits. (Hakluyt, vol. iii, page 243; also, William- 
son's History of North Carolina, vol. i, page 219.) 

In pursuance of this grant. Sir Walter Raleigh fitted out a small 
squadron, under the command of Sir Richard Greenville, to take 
possession of his newly acquired and unbounded territory; and a 
small settlement was actually established, on the 25th of August, 
1584, on Roanoke island, in the present state of North Carolina. This 
was the first settlement made by the English in Virginia, and the 
first British settlement established anywhere on the continent of 
North America. — (See Halkuyt, vol. iii, page 251.) 

Owing to many causes, and after various adventures, which it 
would be unnecessary to mention here, this first settlement was 
abandoned by its founders in the year 1590; and we know nothing 
certainly of the fate of the unfortunate colonists who were then left 
there. — (See Smith's History of Virginia, vol. i, page 105.) 

No other attempt to settle any colony in Virginia was made during 
the reign of Queen Elizabeth, who died in 1603, and was succeeded 
by King James the First. But in the year 1606, this priuce issued 



his letters patent for that purpose, which letters bear date April 10, 
1606. By these, he divided that portion of Virginia which stretches 
from 34° to 45° of northerly latitude, into two districts. In one of 
these districts, called the First or Southern Colony of Virginia, he 
authorized Sir Thomas Gates, and others, his associates, mostly resi- 
dent in London, to plant a colony wherever they might choose, be- 
tween 34° and 41° of north latitude; and he vested in them a right 
of property in the land, extending along the seacoast fifty statute 
miles, on each side of the place of their first plantation, and reach- 
ing into the interior 100 statute miles from the seacoast. The other 
of these districts, called the second or Northern Colony of Virginia, 
he allotted for the settlement of Thomas Hanham, and other, his as- 
sociates, mostly residents of Bristol, Exeter and Plymouth, These 
he authorized to plant a colony, wherever they might choose, between 
38° and 45° of north latitude, and he gave to them a territory of 
similar limits and extent to that given to the first colony. He pro- 
vided, however, that which ever plantation " of the said two colonies 
should be last made, should not be within 100 miles of the other, 
that might be first established. One of these two colonies (the first) 
was soon distinguished as the Loudon Company; and the other (or 
second) was known as the Plymouth Company; but, in after time, 
these names were dropped, and the nayae of Virginia, which was at 
first applied to both the colonies, was retained by the southern col- 
ony only, while the northern colony was called New England. — (For 
a copy of this charter, see Stith's History of Virginia — appendix. 
No. 1.) 

The London Company commenced its operations before the Ply- 
mouth Company. The former fitted out a small ship of 100 tons 
burden, and two barques, the command of which was given to Cap- 
tain Christopher Newport, who sailed from Blackwell, December 19, 
1606, his first destination being Roanoke island, in quest of the un- 
fortunate adventurers left there many years before. Newport had a 
very long passage, and before he reached his destination, his little 
fleet encountered a severe southern gale, the violence of which was 
such as to oblige them to scud before it under bare poles one whole 
night. This was fortunate; for, in running in for the land the next day, 
(April 26, 1607,) they luckily fell in with the capes of Chesapeake 
bay, and entered this great estuary. Pursuing their course along the 
southern shore of the bay, they came to the mouth of a noble river, 
called by the natives Powhatan, but which Captain Newport named 



10 

James river, after his sovereign. Up this river they sailed about 40 
miles from its mouth, in search of a proper place whereon to plant 
the intended colony. Such a place they at length found, in a penin- 
sula on the northern side of the river, connected with the mainland 
by a narrow isthmus of naked sand, easily to be defended against any 
attack, let it come from what quarter it might. Here the adven- 
turers landed on the 13th of May, 1607, and here they established 
their first habitation, to which they gave the name of " James 
City," in honor of King James I, the reigning monarch. — (See 
Smith's History of Virginia, vol. i, book iii, chap, i, page 149, &c.) 

The facts stated above will enable us to determine, and with great 
accuracy, the limits of the grant made to the London Company, by 
their first charter of April 10, 1606. If a meridional line be drawn 
through James City, and extended each way to the distance of fifty 
statute miles from it; if parallels be drawn through the extremities 
of this meridian, and extended to the seacoast; if one hundred stat- 
ute miles from thence be laid ofi" upon each of these parallels; and if 
a straight line be drawn from the extremity of one of them so deter- 
mined, to the extremity of the other, the diagram so to be constructed 
may be considered as a square, the base of which will be one hundred 
statute miles, and its area ten thousand square miles. Such a dia- 
gram, so constructed, will be delineated in precise accordance with all 
the calls of this charter of April 10, 1606. 

We need but cast our eyes upon any map of this region to deter- 
mine the ridiculous absurdity of confining the territory intended to 
be granted by such limits. The only apology that can be ofi'ered for 
such an act, is, that the charter was granted before the country to 
which it was designed to apply was discovered. More than one 
moiety of all the lands within the prescribed limits will be found 
covered by wide and deep water-courses. By these, the dry land 
will be found divided into many small necks, widening as you ad- 
vance upwards, and separated from each other by streams, the width 
and depth of which were such as to render them often impassable, 
and always dangerous; and the first plantation intended to be, and 
that long continued to be, the metropolis or chief place of the colony, 
will be found very near the western and most exposed frontier of the 
territory. Hence, every hope of the future prosperity, and even of the 
security and safety of the infant colony, required that the limits 
given to its territory should be speedily changed and enlarged. 

This was not a matter of speculation. In the year 1608 the coun- 



11 

try had been explored in every direction, throughout its whole length 
and breadth, and far beyond either, by the celebrated Captain John 
Smith, whose wonderfully accurate description of it, given in his re- 
port, we still have. (See Smith's History of Virginia, vol. i, book 3, 
chapters 5 and 6, and the map.) Induced by this report, as well as 
by many defects experience had proved to exist in the form of govern- 
ment for the colony that had been prescribed by their charter, the 
London Company applied to the King to alter this charter; and it 
pleased his Majesty, King James the First, to grant their p'^tition. 
Accordingly, on the 23d of May, 1609, he issued new letters patent 
of that date, for this purpose. At the date of these new letters pa- 
tent, nothing existed to prevent such an extension of the limits of 
Virginia as was thereby made, because no settlement had then been 
made anywhere by the Plymouth Company; so that the whole coun- 
try granted was as open to the new grant as it had been in 1606. 

Before this second charter was granted to the London Company, 
the well-known headland on the northern side of James river, at its 
mouth, had been discovered and called by the name it still bears — 
Point Comfort. Taking this well-known and well-established position 
as a starting point, the new charter granted to the company "all 
those lands, &c., situate, lying and being in that part of America 
called Virginia, from the point of land called Cape or Point Comfort, 
all along the seacoast, to the northward, two hundred miles; and from 
the said point of Cape Comfort, all along the seacoast, to the south- 
ward, two hundred miles; and all that space and circuit of land lying 
from the seacoast of the precinct aforesaid, up into the land, through- 
out from sea to sea, west and northwest; and also all the islands lying 
within one hundred miles along the coast of both seas of the precinct 
aforesaid." — (See a copy of this second charter in Stith's History of 
Virginia, appendix No. 2, page 8, &c.) 

As one of the purposes of this second charter is declared in it to be 
" to grant a further enlargement and explanation of the former grant" 
of 1606; and as no other change is made in the mode of determining 
the new and enlarged limits, from that required for determining the 
old boundaries, except that the precise point of Cape Comfort is sub- 
stituted for James City, we are bound to adopt the same mode of de- 
termining the new limits which had been adopted and approved in the 
former case. 

Therefore, if a meridional line be drawn through the point of Cape 
Comfort, and extended each way to the distance of two hundred miles 



12 

from thence; if parallels be drawn through the extremities of this 
meridian, and extended from sea to sea, (i. e. from the Atlantic to the 
South sea, or Pacific), the diagram so to be constructed may be con- 
sidered a parallelogram. The base of this parallelogram will be the 
seacoast of the Atlantic, having a meridional length of four hundred 
miles, bisected by the parallel of the point of Cape Comfort, and the 
altitude of this parallelogram will be the distance from sea to sea. 

If any one is curious to know why Virginia was extended precisely 
two hundred miles to the north of the parallel of the point of Cape 
Comfort, his curiosity will be satisfied if he will take the trouble to 
calculate the difference of latitude between that parallel and the more 
northere parallel of 40°. In making this calculation, he must make 
some small allowance, however, for the trifling error caused by the im- 
perfection of the clumsy instruments used in 1609 for making obser- 
vations of latitude; as well as for the erroneous opinion then enter- 
tained as to the length of a degree of a great circle in English statute 
miles. We know now the exact quantity of each of these errors in 
our case; but it must be recollected that one of them (the last) puz- 
zled Sir Isaac Newton almost a century after 1609, and delayed the 
publication, because (owing to this error) he could not demonstrate 
the truth of the greatest of his astronomical theories. Correcting his 
calculations in this way, the curious inquirer will so discover that two 
hundred English statute miles, measured along a meridian from the 
parallel of the point of Cape Comfort, will carry him to the parallel 
of 40° north latitude; which last parallel, as will be shown hereafter, 
was then made the common boundary between the two great districts 
of Virginia and New England. 

The distance from Point Comfort north being determined in this 
way, there was no possible objection to adding an equal distance from 
the same point south; for in that direction no grant had then been 
made which, by any possibilit}^, could interfere with the extension of 
Virginia, Thus the new boundaries given to Virginia by the charter 
of May 23, 1609, were, in fact, these : On the north, the parallel of 
40°; on the south, the parallel of 34°; on the east, the Atlantic ocean, 
between these parallels; and on the west, the Pacific ocean, between 
the same parallels. 

These wide limits were very much contracted in after time, in many 
different ways : Isr. By the grant of Maryland to Coecilus Calvert, 
baron of Baltimore in Ireland, made by Charles the First, on the 20th 
of June, 1632. 2d. By the grant of North Carolina to the Earl of 



13 

Clarendon and others, proprietaries of that province, made by Charles 
the Second, June 30th, 1665. 3d. By the grant of Pennsylvania to 
William Penn, made by Charles the Second, March 4th, 1681. 4th. 
By the treaty made between Great Britain and France (commonly 
called the treaty of Paris, because it was concluded at Paris), on the 
10th day of February, 1763; and, 5th. By the constitution of Vir- 
ginia herself, adopted June 29, 1776. Deduct from the area of the 
parallelogram before mentioned the several territories carved out of it 
by the various acts to which we have referred above, and the remain- 
der of this area will represent what Virginia was on the 4th day of July, 
1776 — when she too, like the other colonies, became a free, sovereign, 
and independent State. 

Having shown that the description of the boundary given to Vir- 
ginia by her second charter, in 1609, was neither indefinite nor unin- 
telligible, as this report asserts, and has attempted to prove under its 
first head, we will now examine the second proposition. In this, the 
author seems to have changed his opinion upon the subject; because 
he here attempts to show that the boundary called for by this charter 
is quite definite and intelligible, being the arc of a circle. The centre, 
radius, and chord of this arc he states very plainly; but with what 
truth, it will be our present purpose to examine. 

Not being able even to imagine a reason which could have induced 
the grantor of this charter to establish a confined circular boundary 
as that of the new colony, then very recently settled in Virginia, — 
this, too, when the year before only (in 1608), the same King had 
granted to Sir Robert Heath that immense territory, comprehending 
six degrees of latitude in breadth, and extending in length along one 
side of Virginia, from the Atlantic to the South sea; and had granted 
a few years afterwards (in 1620) to the Duke of Lenox and others, 
another vast territory on the other side of Virginia, including eight 
degrees of latitude in breadth, and extending in length from sea to 
sea, — the committee apprehended that they might have mistaken the 
purport of this report. To ascertain whether this had been done, it 
has been carefully re-examined. 

This second examination not only sustained the first impression as 
to the meaning of the report, but also that, if the report was right, 
such a "circular boundary" was not uncommon "in ancient charters 
of the Crown;" that, in this case, it was "precisely that described in 
this charter;" and that it was the only boundary which could give 
" force and meaning to every word of the grant," and answer every 



14 

object which could have been in contemplation of " either the Crown 
or the grantees." 

On examination, we discovered that all these declarations, so posi- 
tively announced, had no other foundation than the ignorant or wilful 
perversion of the meaning of a plain and well understood English 
word. 

It is obvious that the author of this report has confounded the 
meanings of the word circuit and circle; and as the former of these 
words is used in this charter, he is so led to his conclusion that the 
boundary it denotes must be circular! ! ! Tantcene animis ccelestibus 
iroee ? 

That there may be no doubt of this, read his own words : " It is 
an established rule of construction, that every word should be allowed 
a meaning, and to have been used for some assignable purpose. The 
Virginia construction seems to be in opposition to the word circuit 
used in the description, which appears to have no application to a ter- 
ritory extending between direct and straight lines, from the Atlantic 
to the Pacific ocean. For the description of such a territory, the 
word space would have been proper and sufficient; but the words space 
and circuit, in connexion, seem wholly inappropriate. To give force 
and effect to the word circuit, some other construction must be 
sought." This other construction he afterwards gives thus: "If Cape 
Comfort be taken as the centre of the arc of a circle to be extended 
from, &c., it will be found that the general direction of the line of 
the circle as, &c., the territory thus included will be precisely that 
described in the charter, viz: all that space and circuit of land lying, 
&c.," and he afterwards cites " the northern boundary of Delaware, 
as arising out of the description in an ancient charter of the Crown," 
(.' .' .') and as an example to show " that a circular boundary (for Vir- 
ginia) is not an improbable one." Therefore there can be no doubt 
that it was the misapprehension of the true meaning of this word 
"circuit," which induced this author to commit so many mistakes as 
he has here exposed. 

It is not very probable that any English scholar would have com- 
mitted such a blunder; or that any English lawyer could have fallen 
into such a mistake; or that any geometrician, with this charter be- 
fore his eyes, could have been betrayed into errors so flagrant. 

The signification of the word circuit, is any space or extent that 
may be measured by travelling about it, whether the space be circu- 
lar, elliptical, triangular, square, or polyhedral. In this sense it is 



15 

always used by the English lawyers when they speak of the circuits 
of their judges; and in the same sense it is used in common parlance 
every day, as the author of this report may readily discover, if he will 
but propose to any of his fellow-citizens to take a walk, and in it to 
make a circuit of any square in the city of Washington. 

Before, at, and long after, the date of this charter, the word "cir- 
cuit" was often used in English grants of land; and when so used, it 
was employed in the sense we have given above. In this sense it is 
very nearly, if not precisely, equivalent to the word ^' precijict," that 
will be found connected with it, generally, in all such instruments. 
In illustration of this, several grants of land in Virginia, bearing date 
between the years 1623 and 1640, may be cited. In each of them, 
after describing the boundaries of the land designed to be given, the 
patent conveys all the land "within the space and circuit aforesaid;" 
and in granting the franchises and privileges appurtenant to the land, 
such as the rights of fishing, hunting, hawking, fowling, &c., &c., 
the patent uses the terms " within the precinct aforesaid." Yet the 
land conveyed by each of these grants is a true rectangular parallelo- 
gram, having the length of a statute ndile, and a base or breadth of 
fifty poles. 

Had the learned author of this report been better acquainted with 
the English language, as it was used and understood, both in Eng- 
land and Virginia, from the reign of Queen Elizabeth to the restora- 
tion of Charles the Second, it is probable that he would not have 
committed such a mistake as has been stated. If he had remembered 
the numerous synonymes always used in every English grant, whether 
it be the old charter of feoffment, the more modern deed of bargain 
and sale, or even this charter — in which may be found the words 
" lands, countries, territories, soils, grounds," &c., &c., all used to sig- 
nify the same thing — he would not^ it is supposed, have required that 
a difi'erent meaning should be given to each of these, nor have de- 
sired that a specific reason should be assigned for employing such 
mere formal tautologous terms in an old English grant. And if 
he had read the early history of Delaware with more care, he would 
not, assuredly, have cited the case of her northern boundary, the re- 
sult of a compromise, made in 1680, between the several claimants of 
that small space, either as a case " arising out of a description in an 
ancient charter of the Crown," or as famishing any evidence to prove 
even the probability that King James the First designed to give a 
complete circular boundary to Virginia, by his charter of 1609. But, 



16 

having misunderstood the meaning of the word " circuit/' and con- 
founded it with that of " circle," he was so induced to adopt the fan- 
ciful notion of a circular boundary for Virgioia; and then he was 
obliged to find, or to invent, some reason to prove at least the plausi- 
bility of such a theory. In doing this, he was compelled to disregard 
totally many of the most significant calls ot the charter, and to plunge 
into many absurdities, as will be shown. 

One of the most important requirements of this charter, as in all 
the other grants to which we have formerly referred, is, that the ter- 
ritory granted should extend "from sea to sea;" the meaning of 
which terms has been already shown. But the South sea would not 
be reached anywhere between the parallels mentioned, by any arc of a 
circle drawn with a radius of 200 miles, and having Cape Comfort as 
a centre. 

To avoid this insurmountable objection, the author says, " that it 
was the belief at that time, in England, that the South sea was but 
some short distance from the Atlantic." This is true ; but it is 
equally true that, at the date of this charter, it was known in Eng- 
land that this short distance exceeded 200 miles, as certainly as that 
London was not within 200 miles of the Mediterranean. In 1586, Sir 
Ealph Lane had ascended the Moratoc, now called the Koanoke, to a 
greater distance than 200 miles from the Atlantic. Captain Newport 
had afterwards ascended James river above its falls; and, in 1608, 
Captain John Smith had ascended the Rappahannock, Potomac, and 
Susquehannah, to the rapids of these rivers, respectively. None of 
these explorers had either seen or heard of the South sea, in either of 
these regions ; although to discover it was the chief object of these 
several expeditions. Nay, the volume of fresh water pouring over 
these rapids, and the velocity of its current, assured these adventur- 
ers of the truth of the traditions they heard — that each of these great 
rivers descended from a distant elevated region; and that such streams 
could not have communicated with the salt sea anywhere. So that, 
whatever may have been the belief as to the distance between the two 
seas, it was certainly known, in 1609, that this distance must exceed 
200 miles. 

But if the learned author of this report was permitted to assume 
the distance from sea to sea to be what he pleases, he would still not 
be able to reconcile his fanciful circular boundary with the calls of 
this charter. If the assumed distance was more than two hundred 
miles, his boundary would never reach the South sea, although the 



17 

charter requires the granted territory to extend to that sea. If this 
distance was less than two hundred miles, his fanci-^'d boundary would 
resemble anything else more than any arc of any circle, inasmuch as 
it would then become a quadrilateral figure, having the two seas on 
the east and west, and two segments on the north and south, resp'^c- 
tively. And if this distance was two hundred miles exactly, his 
imagined arc would touch the coast of the South sea in a single 
mathematical point only, when he would find it impossible to give 
effect to that grant in the charter which conveys to the grantees "all 
the islands lying within one hundred miles along the coast of both 
seas of the precinct aforesaid," unless he can conceive that a point 
and precinct are equivalent terms ; so that, qitacumque via data, no 
arc of any circle could satisfy the calls of this charter, given in its 
description of the intended boundary. 

The learned author of this report seems to be as indifferent to the 
impossibility of the truth of some of his geographical assertions, and 
to the mathematical absurdities they would involve, if they were true, 
as to the calls of the charter. Thus, he says, " the cape (Cape 
Comfort) was accordingly made the centre of the coast line, which 
the new charter extended from one hundred to four hundred miles in 
length.'' Now, admitting the terms " the centre of the coast line" 
to have some signification, (although a mathematician would be 
puzzled to determine what point could be properly called the centre 
of a straight line,) no one can conceive that such a point, even if it 
can be imagined to exist, could be found out of the line of which it is 
called the centre. And as Cape Comfort is not upon the seacoast, but 
is distant from it many miles, it is inconceivable that Cape Comfort 
could be made " the centre of the coast line," unless this author 
could transport Cape Comfort from the site it has occupied ever since 
Noah's flood, quite across Chesapeake bay and the peninsula beyond 
it, now called Northampton county. 

Again, he says : " The starting point in the d(?scription now under 
consideration is Cape Comfort. From this the territory is to extend 
along; the coast two hundred miles to the northward, and two hundred 
miles to the southward ;" and to get this " coast-line," as this author 
calls it, he takes "Cape Comfort as the centre of the arc of a circle, 
to be extended from the extremity of one of the before-mentioned 
lines (of two hundred miles) through the interior to the other, and to 
the course of the coast." But if Cape Comfort be not on the coast, 
(and it is not, certainly, nor has it ever been supposed to be,) the arc 



18 

of the circle required to be thus described must be an arc greater than 
a semicircle ; and the coast line, which must be the cord of this arc, 
will not be a diameter. Every school boy can demonstrate, however, 
that the longest straight line that can be drawn within the periphery of 
any circle is a diameter : ergo, as the diameter of this supposed arc 
is demanded to be four hundred miles in length, its chord must be less 
than four hundred miles; so that the author demonstrates, himself, 
the impossibility of the truth of his own postulate. 

The committee deem it unnecessary to review that portion of this 
report in which the author shows so clearly, as he says, that the true 
bearing of a precinct bounded by the arc of a circle, which arc is 
greater than a semi-circle, and has a diameter running north and 
south, must be "west and northwest." Davus sum, non (Edipus. 
But every man of mere common sense must see, at a glance, that such 
a precinct will have all the bearings to be found on more than half 
the compass — that is "to say, instead of being directed to two points 
only, it will be directed to more than sixteen points of the compass. 

This newly invented theory of a circular boundary for Virginia has 
been thus extensively reviewed, because almost every argument urged 
upon this subject will apply with equal force to the next proposition 
brought forward in this report, and therefore need not be repeated. 

Third. — Under this head, the author, abandoning his circular 
boundary for Virginia, although but just asserted so positively, con- 
tends that the true boundary given to her by her charter of 1609 is 
in the form of a triangle. Like old Polonius, he has seen it " backed 
like a weasel," yet "it is very like a whale." 

If this triangle did not reach the South sea, it would not satisfy 
that call of the charter which requires the granted territory to extend 
" from sea to sea." If it extended further from the coast of the 
South sea, the boundary of the territory granted would not be tri- 
angular, but quadrilateral. If its apex reached the South sea ex- 
actly, the grant of the islands in both seas, hereinbefore referred to, 
could not be satisfied; and any mathematician would tell this author 
that, as the long side, or hypothenuse, of his triangle is required by 
him to run to the northwest from the southeast, the bearing of the 
country, or ocean, beyond this precinct must be neither west nor north- 
west, but due southwest from the space and circuit enclosed by the 
three sides of this triangle; that is to say, his triangular diagram is 
constructed as directly in opposition to the requirement of this charter 
as it could well be made. 



19 

The obvious cause of this new error is the mistake of the author in 
supposing that the terms "west and northwest" are used in the 
charter to denote the direction of two mathematical lines, which are 
so to run in order to form two limits of the granted territory — the re- 
maining limit of which territory will be the Atlantic seacoast. But, 
if he will read the charter with more attention, he may discover that 
it does not require any such lines; that, instead of lines, it is the. 
whole " space and circuit" of land previously described in the charter, 
which it directs to be extended .from the seacoast of the Atlantic, 
" up into the land, tJirougJiout from sea to sea; " and that the terms 
" west and northwest" refer to the bearing of the seacoast of one of 
these seas from the other. To satisfy this requirement, two lines, 
each of them extending 200 miles from the point of Cape Comfort, 
and" running north and south, must be drawn. Through the opposite 
extremities of these two meridional lines, two parallels must be drawn 
and extended to the Atlantic seacoast. The precinct so formed must 
then be extended with that breadth further up into the land, through- 
out the whole continent, from the Atlantic to the Pacific ocean; which 
last was then well known to exist, and to bear west and (of course) 
northwest from the first, between these two parallels, although the 
distance between the two seas in this quarter was not then known. 
These boundaries will make an irregular parallelogram, such as has 
been described. They will satisfy every call, and answer all and each 
of the known objects of this charter; they are in exact accordance 
with the opinions expressed by every writer upon this subject, whether 
English or American, until this singular report was given to the 
world; they are in perfect harmony with every act done in relation to 
this territory, during a period of much more than 150 years following 
the date of this charter; and they well illustrate the known policy of 
the English Grovernment in reference to this matter. To this, it may 
be added that there is no other conceivable boundary* which can pos- 
sibly produce such results. 

It has been shown that, according to the requirements of her sec- 
ond charter, granted May 23, 1609, Virginia was bounded on the 
north by the parallel of 40° north latitude; on the south by the 
parallel of 34° north latitude; on the east by the Atlantic ocean, be- 
tween these parallels; and on the west by the South sea, (now some- 
times called the Pacific ocean,) between the same parallels. 

This assertion, although in exact accordance with the opinion ex- 
pressed by every author who has written upon the subject, has been 



20 

questioned for the first time, in a report made to the House of Repre- 
sentatives, by one of its committees, on the 20th of August, 1842. 
It is proper, therefore, to examine the several arguments advanced, 
and suggestions put forth in this report, in relation to this matter. 

No one can read this report without being struck with the glaring 
inconsistencies it exhibits. The object of its author is to show that 
the claim of Virginia to the limits above mentioned is not justified 
by the terms of the charter there stated. To attain this object, he 
contends — 

First. That the description of boundaries given in this charter is 
so indefinite and unintelligible, as to leave it quite uncertain what 
these boundaries were intended to be, and whether they included any 
space. 

Secondly. That the boundary assigned to Virginia by this charter 
is, by that instrument, well defined to be the arc of a circle, the cen- 
tre, radius, and chord of which are phiinly prescribe!; and 

Thirdly. That the boundary of Virginia, called for by this charter 
is, not curvilinear, but rectilinear, and is a veritable rectangular tri- 
angle. 

The two last of these propositions are, obviously, not less contra- 
dictory of the first than they are of each other; yet both of them 
are said to be in accordance with the calls of the same grant. Such 
apparent inconsistencies would seem to prove that their author had 
very little confidence in the correctness of any of his propositions, the 
truth of each of which he so readily disproves by either or both of 
the others. In examining them, however, we will deal with him 
more fairly than he has done with his subject. We will cot attempt 
to overturn one asserted error by another; but we will investigate 
each of these propositions as though it stood alone. 

First. The author of this report commences his argument by quoting 
so much of the charter of 1609 as he thought useful; and hav- 
ing done so, he very gravely assumes that " it must be admitted that 
this description (of the boundary) is not very definite or very clearly 
intelligible." But, aware that such a modest petitio principii might 
not be granted, he immediately undertakes to prove it. This he does 
by selecting particular phrases from his quotation, as evidences of a 
" description not very definite," or " very clearly intelligible." 

The first of these selected passages, he finds in the phrase " from 
sea to sea." These words, he observes, '• have been holden by Vir- 
ginia to extend the territory from the Atlantic to the Pacific ocean, 



21 

at that time called the South sea. But the South sea [and he might 
have added the Atlantic] is not named; and the inference that it 
[or either] was intended, if arrived at, can only be done from other 
words in the description." He remembers, however, to forget to state 
what these other words in the description are; and he has most 
studiously avoided to insert some of them in his quotation. Such 
disingenuousness may, perhaps, be pardoned in a lawyer, whose ob- 
ject is not truth, but victory. It does not well become a member of 
Congress, however, who is charged with the high duty of reporting 
to that body all the facts of a case, to the end that this body and 
the world may be enabled to form an impartial opinion of the merits. 
Under such circumstances, the suppressio veri is precisely equivalent 
to the suggestio falsi. 

It would be very easy to prove the ambiguity, nay, the falsehood, 
of any instrum(^nt, however plain, precise, and true its language may 
be, if it was permitted to garble the language, by wresting a single 
phrase from its context, and to present this alone as the assertion of 
an independent and substantive proposition. No inquirer after truth 
has ever permitted himself to do so. In this instance, every one of 
the terms " from sea to sea" are quite intelligible to every under- 
standing, and the supposed abiguity consists only in determining the 
objects to which these plain words refer. 

To determine this, no candid inquirer would have failed to re- 
mark that " to grant a further enlargement " of a known territory 
previously granted, was one of the declared objects of the charter of 
1609. That this previously granted territory was declared to be " in 
that part of America called Virginia," a region long known to be 
situated on the seacoast of the Atlantic ocean, confined by the form- 
er grant to a space on the "seacoast," between the 34th and 4Ist de- 
grees of northerly latitude from " the equinoctial line;" and that 
" Cape, or Point Comfort," mentioned in the enlarged grant, was a 
well-known spot in Virginia, situated within the territory formerly 
granted, near to, and in full view of the Atlantic ocean. If these 
facts had been stated, as they ought to have been, he must have been 
skeptical indeed who could have doubted that the Atlantic ocean was 
one of the two seas referred to by the terms '" from sea to sea;" and 
one of the two seas referred to in that part of the charter which 
grants " all the islands lying within one hundred miles along the 
coast of both seas of the p-ecinct afbresiid." This being granted, 
even the geographical knowledge of this author, great as it may be, 



22 

would have been severely taxed to point out any other than the South 
sea, or Pacific ocean, which can be found, or was ever imagined to 
exist, between the parallels of 34° and 40° of north latitude, if you 
proceed "from the (Atlantic) seacoast of the precinct aforesaid, up 
into the land, throughout from sea to sea," no matter what course 
you may pursue. 

But an impartial inquirer after truth would not have stopped even 
here. He would have remarked, also, that one of the great objects of 
the London Company, from its very origin, was the discovery of the 
South sea, as the certain and infallible way to immense riches; that 
by the instructions given by this company to their agents in Virginia, 
these agents were specially required and advised how they should pro- 
ceed in prosecuting this discovery; and that it was the general belief 
in England, at that day, that the South sea, or Pacific ocean, was but 
a short distance from the Atlantic, opposite to the seacoast of the 
latter, within the precinct assigned to Virginia. Combining all these 
circumstances, it is confidently believed that not one intelligent mind 
can be found in the whole world, except the minds of those who pre- 
pared or approved this report, which can doubt that these intelligible 
words, " from sea to sea," refer to^ and were intended to denote, the 
Atlantic and Pacific oceans; and that they cannot be so tortured as to 
be made to apply to any other than these two seas, if any regard is 
had to their context and the date at which they were used. 

But if any scintilla of doubt in regard to this matter can remain, 
it must be removed by a reference to the early grants of other British 
colonies in Amerira, a part of some of which were actually carved out 
of Vi.'-ginia. 

I. The second, or northern colony of Virginia, having done nothing 
effectual towards establishing any permanent settlement in America, 
under, the original charter of 1606, King James I, on the 3d day of 
November, 1620, made a hew grant to the Duke of Lenox, and others, 
his associates, who were styled in the letters patent the ^' grand coun- 
cil of Plymouth for planting and governing New England in Amer- 
ica." By this grant, the King granted to them the territory "be- 
tween the fortieth and forty-eighth degrees of north latitude, extend- 
ing throughout the main land, from sea to sea." (See Chalmers's 
Annals, p. 97, &c.) 

II, The grand council of Plymouth, created by this charter on the 
19th of March, 1627, made a grant to Sir Henry Koswell, and others, 
" of all that part of New England which lies between three miles 



23 

north of the Merrimack river, and three miles to the south of Charles 
rives, extending/row the Atlantic to the South sea." (See Neale's 
History of New Enghind, vol. 1, p. 122.) This grant of the grand 
council of Plymouth was confirmed by King Charles I, on the 4th of 
March, 1628, who, by his charter of that date, incorporated the 
grantees by the name of '^ the Governor and Company of Massachu- 
setts Bay, in New Eugland." (See Hutchinson's Collection of Orig- 
inal Papers, p. 120.) 

III. In 1630, the grand council of Plymouth granted Connecticut 
to the Earl of Warwick, who transferred his grant to Lord S;iy and 
Seal, and others. This grant conveyed " ail that part of New Eng- 
land which extends from Narragansett river, one hundred and twenty 
miles on a straight line, near the shore, towards the southwest, as the 
coast lies towards Virginia, and within that breadth, from the Atlan- 
tic ocean to the South sea." This grant, too, was afterwards con- 
firmed by King Charles I. (See Hutchinson, p. 44, &c.; and Neale, 
vol. 1, p. 147.) 

IV. In the fifth year of the reign of James I, that monarch granted 
to Sir Robert Heath, his Attorney General, " all that part of America 
from the river St. Matthew, in thirty degrees of north latitude, to the 
river Passo Mago, in thirty-six degrees, and extending in longitude 

from the Atlantic to the South sea." (See Williamson's History of 
North Carolina, vol. 1, p. 84.) This grant was made in 1608, before 
the second charter granted to the London Company, in 1609. But 
the conditions of the grant to Heath not being fulfilled, King Charles 
II, on the 24th of March, 1662-3, made a new grant to the Earl of 
Clarendon and others, " of all that province, territory, or tract of 
ground, called Carolina, situate, lying, and being within our domin- 
ions of America, extending from the north end of the island called 
Luke island, which lieth in the southern Virginia seas, and within 
thirty-six degrees of north latitude; and to the west as far as the 
South seas; and so respectively as far as the river of Matthias, which 
bordereth upon the coast of Florida, and within thirty-one degrees of 
northern latitude; and so west, in a direct line, as far as the South 
seas aforesaid." 

For reasons which need not be stated here, it pleased this monarch 
afterwards to enlarge this grant. By a new charter, bearing date 
June 30, 1665, he granted to the same proprietaries " all that province, 
territory, or tract of land, situate, lying, and being within our domin- 
ions of America aforesaid, extending north and eastward as far as the 



^4 

north end of Currituck river, or inlet, upon a straight westerly line, 
to Wj'onock creek, which lies within or about the degree of thirty-six 
and thirty minutes northern latitude; and so west, in a direct line, as 
far as the South seas: and south and westward as far as the de^-ree of 
twenty-nine, inclusive, of northern latitude; and so west, in a direct 
line, as far as the South seas." (See Williamson's History, vol. 1, p. 
230, &c.) 

This grant, like that preceding it, cut off from Virginia all that 
portion of her former territory which was situated north of the par- 
allel of thirty-four; and by the last grant above mentioned, the com- 
mon boundaay between the two colonies of Virginia and Carolina was 
declared to be the parallel of 36° 30' north latitude, extending from 
the Atlantic ocean, here called " the southern Virginia seas," in a di- 
rect line, as far as the South seas. Here it may properly be remarked 
that this common boundary, so established at that time, has continued 
to be the common boundary dividing the territories of these two colo- 
nies from that day (June 30, 1665,) to this. 

About the commencement of the last century, when the settlement 
of each of these colonies, along their common boundary, had come 
into contact with each other, a difference arose between them. This 
difference involved no question as to what this common boundary was; 
but simply where the admitted boundary-line would pass, if extended 
west from the Atlantic ocean, in a direct line to the South seas, ac- 
cording to the calls of the Carolina grant. To determine this differ- 
ence. Queen Anne, on the 1st of March, 1710, by an order in council 
of that date, directed that commissioners should be appointed by the 
Governor of Virginia, and by the lords proprietors of Carolina, re- 
spectively, for the purpose of running the dividing-line between the 
two provinces. Before any such commissioners were appointed by 
either of these parties, Governor Spotswood, on the part of Virginia, 
and Governor Edin, on the part of the lords proprietors of Carolina, 
agreed upon the terms according to which the existing contro- 
versy might be settled, if these terms were approved by the Crown of 
England and the lords proprietors aforesaid. The terras proposed by 
the two Governors were submitted as suggested, and were approved 
by an order in council, made by King George I, on the 28th of May. 
1727. In consequence of this, commissioners were appointed by the 
lords proprietors and by the King, (George II,) on the 14th of Decem- 
ber, 1727, to run the dividing-line according to the terms approved by 
both parties. These commissioners performed the duty assigned them 



25 

to the perfect satisfaction of their several constituents. During the 
year 1728 the dividing-line was run, according to the calls of the Car- 
olina grant, from the seacoast to a point in the present county of Pa- 
trick, within sight of the Allegany mountains, a distance of two 
hundred and forty-one miles and two hundred and thirty poles — much 
more than a hundred miles beyond any settlement then made in either 
Carolina or Virginia. Here they were compelled to stop, by reason of 
the approach of wintei and the failure of their provisions. (See the 
journal of Col. William Byrd, of Westover, one of these commis- 
sioners.) 

To these examples more could be added, derived from the early 
grants of other British colonies in America; but those referred to 
above must suffice, as we think, to establish these propositions: that 
so early as the reign of King James I., the crown of England claimed, 
by right of first discovery and occupancy, all that part of the conti- 
nent of North America situated between the 29th and 48th degrees 
of north latitude, stretching throughout this continent from sea to 
sea — i. e. from the Atlantic to the Pacific ocean, then known as the 
South sea. That all this region was divided, at first, into three colo- 
nies — the first, or most southern of these colonies, was extended alono- 
the seacoast of the Atlantic, between the degrees of 29 and 36 of 
north latitude; the middle colony was extended along the same sea- 
coast, between the degrees of 36 and 40 of north latitude; the last, 
or most northward colony, was extended along the same seacoast, be- 
tween the degrees of 40 and 48 of north latitude; and each and all of 
these three colonies stretched throughout the continent, between the 
named parallels, respectively, from sea to sea — i. e. from the iVtlantic- 
to the Pacific oc^-an, in order to cover the whole space claimed by the 
Crown. 

That such was the opinion in regard to the middle colony, called 
Virginia, the first in which any p'^rmanent settlement was made by 
the English, appears from what is stated in the earliest history of 
Virginia that exists; for Smith's work, although so called, scarcely 
merits this tit;le. The first chapter of the second book of Beverley's 
history is dedicated to a description "of the bounds and coast of Vir- 
ginia," as they were understood and believed to be when he wrote — 
that is to say, about the year 1722, after the territory of this colony 
had been abridged by the proprietary grants of Maryland and Caro- 
lina. "Virginia thus considered," says Beverley, "is bounded on the 
south by North Carolina; on the north by Patowmeck river, which 



26 

divides it from Mai'yland; on the east by the main ocean, called the 
Virginia seas; and on the west and northwest by the Californian sea, 
whenever the settlements shall be extended so far, or now by the river 
Mississippi." — (See Beverley's History of Virginia, p. 102.) 

Whether Kobert Beverley, long the Secretary of Stale of Virginia, 
an officer appointed by the Crown of England, writing his history in 
1722, in London, where he had the freest access to the public archives 
there, or the learned author of this report, written in 1842, merits the 
most confidence when they describe the ancient bounds of Virginia, is 
a question we willingly submit to the candid determination of an im- 
partial world. Non nostrum tantas componere lites. 

After what has bsen urged, it is not deemed necessary to spend 
much time in examining the next passage selected by the author of 
this report, to prove that the description of the boundaries of Vir- 
ginia, given in her charter of 1609, "is not very definite or very 
clearly intelligible." This passage he finds in the words "west and 
northwest." 

Every lawyer knows that, when any grant calls for a natural ob- 
ject, to that object you must go, in running out the lines of the grant, 
notwithstanding it may not be found either in the direction or at the 
distance mentioned; and that no grant has ever been considered as 
either indefiniter or unintelligible, because of the incongruity between 
the bearing given in the grant, and the true bearing of the natural 
object. Now, as the South sea is a well known natural object, called 
for by this charter, it is of very little consequence whether this natu- 
ral object is found north or south, east or west, from the point of de- 
parture. Besides, the author of this report is certainly in error when 
he understands the terms " west and northwest" as being used, in 
this charter, to denote the direction of a line to be extended between 
two points — one on the seacoast of the Atlantic, and the other to be 
found somewhere in that direction, on the seacoast of the South sea. 
If this charter is examined as it ought to be, it will be seen that it is 
not a mere line, but " all that space and circuit of land lying from 
the seacoast of the precinct aforesaid," which is required to run " up 
into the land, throughout from sea to sea, west and northwest." 

The geometrical truth and certainty of these words " west and 
northwest" could be demonstrated, when applied (as they are applied 
in this charter) to denote the relative bearing of two such long lines 
of seacoast on the Atlantic and Pacific oceans. But it is deemed 
sufficient to state upon this subject, that this apparent inconsistency 



27 

results from that projection of the sphere, according to which all de- 
grees of longitude must diminish, in their terrestrial length, as you 
proceed from the equator to either of the poles. The effect of this 
is, as every navigator knows well, that every meridian in the northern 
hemisphere, distant from any other given meridian in the same hemi- 
sphere, either towards the east or west, must necessarily bear from the 
given meridian, both east and northeast, west and northwest, as the 
case may be. That this was really the construction of her charter for 
which Virginia contended, is not matter of conjecture or of tradition. 
In the negotiation between Virginia and Pennsylvania for the adjust- 
ment of the boundary lines between the two States, which took place 
in 1779, the commissioners on the part of Pennsylvania suggested 
that the claim of Pennsylvania, which they insisted on, appeared to 
them the more reasonable, "as it was probable that it would not in- 
terfere with the boundaries of Virginia, as described in her charter of 
the 23d of May, 1609, when they should be determined according to 
the tenor of the same." To which the commissioners of Virginia an- 
swered : " What you suggest to strengthen the reasonableness of the 
claim of Pennsylvania, from the probability that it will not interfere 
with the boundaries of Virginia, as described in its charter of May 
23, 1609, appears to us to have no weight. The northern boundary 
of Virginia, as described in that charter, beginning on the seacoasfc 
200 miles northwest from Cape or Point Comfort, and running west 
and northwest, up into the land, throughout from sea to sea. Such a 
northern boundary, which is truly deduced from the quoted charter, 
will cross the Delaware above Newcastle, and, passing through the 
State of Pennsylvania with a. west-northioesf coiirse, will emerge about 
the beginning of the 42d degree of north latitude; from all which, it 
is evident how much the claim of Pennsylvania interferes with the 
boundaries as described in the charter of the 23d of May, 1609." 
This quotation is made to show that the northern boundary-line which 
Virginia claimed under her charter was a loest-northwest line, from the 
northern extremity of her seacoast line; and it is remarkable that the 
commissioners of Pennsylvania never afterwards touched that topic. 
(See Hsning's Statutes at Large, vol. 10, pages 519, 523, 527, and 
537.) 

Having thus made good our original proposition, and relieved it 
from every objection tirged against it by this author, the committee 
decline ui'ging anything fui'lher concerning the ancient boundaries of 
Virginia given by the charter of May 23, 1609. Tiie propriety of 



28 

this course will not be questioned, since the report under considera- 
tion itself announces to the world that " the committee do not deem 
the question of the construction of the charter in regard to bounda- 
ries of any great importance, because they think the State of Vir- 
ginia has no right to claim under it," What jastification that 
committee may have to offer to their constituents and to the world, 
for wasting so much of the public time in the exanjination and dis- 
cussion of a question which the committee itself dechires not to be 
of any great importance, it is not for us to determine, differing with 
that committee in the opinion so expressed; yet it would ill become 
us to follow the example set, and to extend our investigation further 
than they have done, or to treat gravely any question after they have 
abandoned it by announcing it to be of no consequence. 

The reason assigned by the committee for not deeming the question 
of the construction of the charter in regard to boundaries of any im- 
portance, is, " because they think the State of Virginia has no right 
to claim under it." In support of this opinion, the committee urge 
many arguments, each of which we will now examine: 

The first of these arguments rests upon the assertion of a fact, 
(which fact no one ever has or can deny,) that all the charters 
granted to the London Company (of which there were three) were 
cancelled by a judgment of the Court of King's Bench, pronounced 
in a case of quo ivarranto depending in that court at its Trinity 
term, in the year 1624. From this admitted fact, the committee de- 
duce their conclusion that the State of Virginia has no right to claim 
under such revoked charters. 

Throughout this whole report, in reasoning upon the several sub- 
jects he presents, its author employs terms so general and compre- 
hensive, that it is difficult to determine the precise object to which 
he intends to refer. The present is an apt example to illustrate this. 
What does this mean by "the State of Virginia.^" If he means 
(what his words seem to denote) that self-created body politic and 
corporate which, in 1776, proclaimed itself a free, sovereign, and in- 
dependent State, and then chose to take upon itself the name of " the 
Commonwealth of Virginia," he asserts but a necessary truism, re- 
quiring no argument to prove it. Such a sovereign body, self-created 
and self-sustained, could never stoop to claim SiUyihrng under the mere 
concessions or grants of any human being. The foundation of her 
claims must not be sought for in parchment rolls of any kind. It 
exists and can be found nowhere but in the stout hearts and stronor 



29 

arms of her snlijects, whose eyes ever heara with delight when they 
willingly and sincerely call njion their creator ti) witness their vow 
that they will be faithtiil and true to her. Strip her of this alle- 
giance, by any means, and she becomes extinct — at once incapable 
alike of claiming or of holding anything. Virginia, as a region, 
must have a local designation and a name, both of which, of necessity, 
must have been bestowed upon it by others; but, as a free and sov- 
ereign State, she exists only in the hearts of her own subjects. 
They created her, they have maintained her, and, with the blessing of 
God, they alone can preserve her. 

Even if the charter incorporating the London Company had never 
been annulled by the judgm(nit of any court, it would be very absurd 
to suppose that Virginia, as a State, could claim anything under it. 
The very assertion of her sovereignty, when proclaimed by herself, 
would have revoked this charter. In virtue of that eminent domain 
which every sovereign must possess, all the lands within every coun- 
try must be held by, of, or under its sovereign; and it would be ri- 
diculous for this sovereign to. claim anything under a subject, who at 
that instant must have claimed the same thing under him. It is in 
virtue of this sovereign right that all escheats and forfeitures are 
claimed; and it is in virtue of the same right that the payment of 
all taxes, and the performance of every other servitude necessary to 
the preservation of the sovereignty — such as militia service, &c., 
&c., — may be, and are, lawfully required. 

Therefore it is that the "Commonwealth of Virginia" never could 
have claimed (as it is certain that she never has claimed) any one el- 
ement of her sovereignty under the concession or grant of any human 
being. She scorns to deduce it from th;-t treaty of 1783, which every 
American (with the exception of one man) has ever considered, not 
as a grant, but as a recognition of pre-existing rights; and the era 
of her independence dates not from 1783, but frota 1776; as the 
years of the colony did not begin with the 13lh of May, the date 
ot the first settlement, but with the 26th of October, 1607, when the 
discovery of Virginia was made. 

But the author of this report may not mean " the State of Vir- 
ginia;" by these words, he may intend, perhaps, to designate the peo- 
ple of Virginia, such as they were before they proclaimed themselves 
a sovereign State. If this be his meaning, he still errs in asserting 
that these colonists had no right to claim anything under the char- 
ters, after the revocation of these charters in 1624, 



30 

He who asserts such an opinion can know but little of the En- 
glish constitution, as it was understood to be in 1624, or of what 
must have been the condition of all English colonists, under that 
constitution, but for their charters; nor can he understand much bet- 
ter the well-settled doctrines of th'e common law, if he asserts that 
the revocation of any charter can disturb the vested rights of third 
persons, lawfully acquired under such an instrument, while it was 
acknowledged to be valid and obligatory. Happily, we have so sel- 
dom any occasion to refer to such doctrines now, that many sciolists 
regard them as antiquated and obsolete. Hence, the committee must 
be excused for employing some time in vindicating our forefathers, 
and in explaining why they considered a charter as the sure founda- 
tion of all their rights, and as the palladium of their liberties; and 
why, until 1776, they always referred to their charters (although re- 
voked by the grantor) as an ever-enduring guaranty to them and their 
posterity of their rights to life, liberty, and property; and as sancti- 
fying resistance, whenever it should be necessary to resort to it, to de- 
fend these rights against lawless power and unauthorized oppression. 

According to the theory of the English constitution, as it was un- 
derstood in the reign of James the First, the King was a sovereign as 
absolute as any monarch Avho ever sat upon a throne, whether in an- 
cient or modern day.^. Such absolute authority was first acquired by 
conquest; and, being transmitted through many centuries, it de- 
volved at last upon this King, who uniting in his person every form- 
erly disputed claim to the English crown, his parasites found little 
difficulty in convincing him that the power was his jure divino. 

But, absolute and sacred as was the authority of the King, accord- 
ing to the theory of the constitution, the exercise of such authority 
was checked and restrained by very many circumstances. These, in 
their origin, had no relation whatever to the actual government; but, 
co-existing with, and respected by it, during many gpuerations, they 
had exerted a benignant and insensible influence upon it fur so long a 
time, that, when combined, they served as a strong rampart around 
the privileges of the subjects, by which they were secured against the 
prerogatives of the Crown. Thus, the English Government, although 
in its theory as absolute as any upon earth, in its practice and effects 
was the freest then known to man. 

Nor was this freedom less secure because these efficacious checks 
and potent restraints upon the practical exercise of ab.^olute power 
were neither engrossed on parchment nor engraved on brass. They 



31 

were deeply written on the hearts of a brave people, endeared to their 
aifections, not less by the fact that they hud come down to them from 
a line so remote that the memory of man ran not to the contrary, 
than by the benign influence they had ever exerted. Casuistry could 
never diminish this influence by construction; and it readily accommo- 
dated itself to all circumstances, when and as they arose. It walked 
with the monarch as a loyal and faithful liege, bearing a sharp sword, 
to be wielded by a strong arm, whenever it was unsheathed in defence 
of right; but acting as a magician's wand, and paralyzing his every 
faculty to do wrong. 

But all these potent restraints upon the exercise of theoretic abso- 
lute power were peculiar to England. All the circumstances by which 
they were created and preserved were of English origin and of Eng- 
lish growth. They existed not in tlie sister kingdom of Scotland, al- 
though then governed by the same King; nor wert- they known in the 
neighboring realm of Ireland. English customs were the guaranties 
of the rights of Englishmen, and the freedom they assured was Eng- 
lish liberty. It existed at that day in no other region on earth than 
England; and would have perished if transplanted elsewhere, unless 
some means had been devised to preserve the exotic in a new climate 
and foreign soil. 

In the reign of Queen Elizabeth, the scheme of colonizing parts of 
America was conceived by that sagacious monarch; but she and all 
her wise counsellors knew well that the execution of such a scheme 
would prove to be but a vain attempt, unless some plan could be 
adopted by mean of which the privileges of Englishmen might be con- 
tinued and secured to them when they removed to a remote and for- 
eign land. Therefore, in the first grant made by Queen Elizabeth to 
Sir Humphrey Gilbert, bearing date Juno 11, 1578, she declared to 
him, " his heirs, and assigns, and to every other person and persons, 
and to their and every of their heirs, that they, and every of them that 
should be thereafter inhabiting in the said lauds, countries, and terri- 
tories, should and might have and enjoy all privileges of free deni- 
zens, or persons native of England; any law, custom, or usage to the 
contrary notwithstanding." — (See Stith's History of Virginia, page 5.) 
The same declaration was repeated, but in stronger terms, by King 
James the First, in the 15th clause of his first charter, dated April 
10, 1606, and renewed in the 22d article of his second charter to the 
London Company, dated May 23, 1609.— (See Stith, Appendix, pages 
6 and 20.) To which the committee may add, that the same covea- 



32 

ant, in some form or other, exists in every charter for the purpose of 
colonization, granted by the Crown of England from that day to 
this. 

Such a solemn covenant, so concluded between a sovereisrn and his 
subjects, after being fully executed on their parts, can never be re- 
voked on his. Destroy the evidence of the promise made, if you 
please, and by any means you please; the destruction of the parch- 
ment can never disturb the rights acquired under it. Neither the 
judgment of a court, or of any other earthly tribunal, can ever nulify 
that holy covenant, which, being executed by one party; thereby be- 
comes enregistered, as obligatory upon the other, in that sacred record 
that man never keeps or can folsify. Therefore, the committee can 
safely appeal to every statesman, moralist, or jurist, on earth, not be- 
ing members of this committee, to say, whether they were not as free 
denizens of England, after the cancelling of these charters, as they 
had been before. And, in the same name, we pn^test against the new 
doctrine advanced, for the first time, by the author of this report — 
that our ancestors were the villein serfs of any despot master, or other 
than free denizens, natives of England, who, even after the revocation 
of the charters, might walk through the unexplored forests of Virgi- 
nia, with the like security their English brethren enjoyed as they 
strolled over the vale of Runnymede, or through the thronged streets 
of London. The genius of English liberty, evoked by this ever-en- 
during covenant, accompanied them whithersoever they might go in 
Virginia, as a guardian angel, to whose charge was specially commit- 
ted the preservation of all their English privileges. It is false, then, 
to say that the colonists of Virginia could claim nothing under the 
charters, after the revocation of these charters in 1624. They still 
claimed, and were still entitled to, all the j)rivileges of free denizens 
of England. This, their claim, they deduced from their charters for 
a period of more than 150 years after 1624, during all which period 
their claim was very often recognised, and never doubted by any one. 

But the author of this report may say, perhaps, that the subject of 
his examination was territory; that all his remarks, although expressed 
in such general terms, should be referred to that subject only; and 
that all he meant to say was, that neither the colonists nor the State 
of Virginia could claim any territory under the charters, after the re- 
vocation of these charters in 1624. 

Even so qualified and explained, the assertion is still incorrect. A 
very large portion of that space included within the circuit of not less 



33 

than twelve of our present counties, Is still claimed and held under 
patents granted by the London Company during the legal existence of 
that corporation. And any lawyer will tell this author that titles so 
derived were as valid and sacred after the charters were annulled, as 
they had been before; and that they continue as valid at this d;iy, as 
any titles derived under grants of the Crown before the Revolution, 
although such grants may be under the great seal of England, as the 
manner is, authenticated per ipsum regem. 

Sixty years have now elapsed since Virginia ceded the territory 
northwest of the Ohio to the United States; sixty years since, her 
original right to the territory was, in effect, admitted by the United 
States, by the acknowledgment of her right to impose conditions on the 
grant, and by the acceptance of the grant subject to those conditions. 
Of those conditions the United States have constantly recognized the 
obligation, and their duty to fulfil them, as a matter of solemn con- 
tract between the State of Virginia and the United States, 

The constitution of the United States recognized and ratified this 
contract, article 6, clause 1. The United States claim and hold un- 
der the grant of Virginia. It is yet more the interest of the grantees 
than of the grantor to make good the title which Virginia ceded. 
These considerations, alone, should suffice, at this late day, to pre- 
clude any branch of the Federal Government from questioning the 
validity of the original right of Virginia to the territory. 

Suppose the original claim of Virginia to the territory had no foun- 
dation in truth and justice^ suppose the United States had title to it, 
independently of, and paramount to, the cession of it by Virginia: of 
what importance is it — what possible good purpose can it now answer 
— to contest, or to maintain, any such proposition.^ It is a very un- 
happy, and, in the eff'ect, (though it may not be in the motive,) a 
very mischievous disposition, which preserves or revives the memory 
of every ancient feud, inflames anew every cause of civil dissension 
which the wisdom of our lathers extinguished, and rakes among the 
ashes of the dead for every subject of party quarrel, of which, if his- 
tory has preserved a shadowy sketch of the grounds, time has de- 
stroyed every vestage of interest. 

The apology for reviving this old controversy touching the original 
right ot Virginia to the territory northwest of the Ohio, is found, it 
seems, in the vaunt made in the report adopted by the House of Del- 
egates in 1834, of " the magnificent sacrifice" and " the generosity" 
of Virginia in making the cession of it to the United States — a vaunt, 



34 

which good taste should have counselled the omission of; and had Mr. 
Hall been content with saying, in his report, that it was wholly im- 
material to the subject then under consideration, (the jjropriety, 
namely, of making additional provision for the satisfaction of claims 
for military land bounties,) this committee would have agreed with 
him without the least reserve. 

Allusion has been made in the report now under consideration to 
the probable intention of the English government, a few years before 
the Revolution, to erect new and separate colonies out of the western 
territory. But this policy was as likely to be applied to the western 
part of Georgia, South and North Carolina, Pennsylvania, and New 
York, as to that of Virginia. 

Bat the design to form a new and separate colony west of the Alle- 
ganies, out of the territory of Virginia, as held or claimed under orig- 
inal charters, rested on the right claimed and exercised by the Crown, 
and to all practical purposes long acquiesced in, to dismember from 
the colonies, at its discretion, any part of their acknoioledged terri- 
tory, as had been done by the charters of Maryland, Pennsylvania, 
Carolina, New York, Maine, and New Hampshire. It certainly was 
not founded on any pretence that the new colony proposed to be formed 
west of the AUeganies would not take away part of the territory 
which Virginia was entitled to under her charter of May, 1609. That 
territory was already formed into a county called West Augusta, and 
a considerable population was settled in it, represented in the House 
of Burgesses, and, in all respects, subject to the jurisdiction of Vir- 
ginia. The very instruction* to the colonial government not to issue 
srants for lands on the western waters, was a virtual admission that 
the country was part of Virginia, of which, but for the prohibition, 
the colonial government might have continued to make grants. In 
fact, not a few formal grants {patents, as we call them) had been is- 
sued before the instruction was given; and much larger grants had 
been authorized hy order of the council, according to an ancient and 
frequent practice of the colonial government. In June, 1749, a tract 
of 800,000 acres of land in our trans- Allegany country, was granted 
by order of council to the Loyal Company, to which in June, 1753, 
further time was allowed to complete its surveys. In October, 1751, 
100,000 acres were, in like manner, granted to the Greenbrier Com- 

*This instruction was prior in date to the proclamation of October, 1763, mentioned 
in Mr. Hall's report, for it was certainly acted on by the colonial Governor and Council 
in May, 1763. 



35 

pany, (part of which lay beyond the Alleganies,) and many surveys 
were made by both companies, but their progress was arrested by the 
breaking out of the war of 1756, and the irruption of the Indians, 
which immediately ensued. After the peace of 1763, these two com- 
panies united in a petition to the Governor and Council, praying a 
renewal of their grants, and further time to complete their surveys. 
Bat the Governor and Council resolved that, the King having in- 
structed the colonial government not to make grants of lands on the 
western waters, they were thereby restrained from granting the prayer 
of the petitioners. This was in May, 1763; and yet as late as 1769, 
200,000 acres of land, all lying on our western waters, were granted 
to General Washington, and other provincial officers and soldiers in 
the war of 1756, (known as Braddock's war,) for military land boun- 
ties, promised by the proclamation of Governor Dinwiddle of Virginia, 
in 1754; and of these lands surveys were made, and formal patents 
issued from the land office of Virginia; and this under a royal proc- 
lamation of 1763, relaxing so far the prohibition against the grant of 
lands lying on the western waters. (See Revised Code of 1819, vol. 
2, app. 2, pp. 347, 349.) Let it be remarked that the royal procla- 
mations, the instructions to the Governor and Council, and the ex- 
ception in favor of the military land bounties, were made, promul- 
gated, and carried into execution, through the instrumentality of the 
colonial government of Virginia. And then, it is presumed, it can 
hardly be doubted that the Crown acknowledged, as the colony 
claimed, that the territory of Virginia extended beyond the Allegany 
mountains; and if Virjxinia was entitled to it, she could onlv have 
been so entitled by \nrtue of her charter of May, 1609; and she had 
the same title to all the rest of the territory within the limits de- 
scribed by the charter, to the western lands lying beyond the Ohio, as 
well as to the western lands on this side of that river. It may be re- 
marked, moreover, that though the royal Governor and Council of 
Virginia professed respect to the royal instructions on the subject, the 
people paid not the least regard to them. They could not get their 
patents, but they persisted in making their settlements with great ac- 
tivity, and were nowise discouraged by the Colonial Government from 
doing .^;o; and they always acknowledged the jurisdiction of Virginia, 
claimed her protection, submitted, and indeed claimed to be governed 
by her laws, and were represented in her legislature. For the de- 
fence and security of these very settlers, Virginia waged a war against 
the Indians, daring Lord Dunmore's administration, some two or three 



36 

years before the Revolution, which was terminated by the battle 
(memorable in our colonial annals) of Point Pleasant. 

So far, therefore, fiom this intention of th'B Crown to erect separate 
colonies beyond the Alleganies, proving that territory not to be within 
the limits of Virginia, it admits the fact. But it has never been pre- 
tended that any charters were granted creating such colonial govern- 
ments; therefore, the western limits of Virginia remained, up to the 
time of the deed of cession, unchanged, and in all respects the same 
as were indicated by tlie charter of 1609. 

It is stated in the report, that "the committee did not deem the 
question of the construction of the charter of any great importance, 
because they thought the State of Virginia had no right to claim un- 
der it;" for that, "in the year 1623 a controversy aroso between the 
Crown and the London Company;" that, "in November of that year, 
a writ of quo luarranto issued against the patent of the corporation, 
and at Trinity term of the Court of King's Bench, 1624, judg- 
ment was rendered, cancelling the patent, and ordering the charter to 
be resumed by the Crown;" that, "from that time Virginia became 
a royal province, and continued such until the period of the Ameri- 
can Revolution; that, during the long period of 150 years from the 
dissolution of the charter of the London Company to the commence- 
ment of the American Revolution, not an act was done, either by the 
Croivn or Virginia, recognizing its existence," (the existence of the 
charter), "It was known in history, as a thing that had been, and 
had ceased to be." 

It is apprehended, that if the details of that controversy, and the 
judgment pronounced in it, were examined, it would be found that 
the judgment only took away the monopoly, and the power of gov- 
ernment over the colony, which were vested in the company by the 
charter, without affecting at all the territorial limits, or other rights 
of the colony itself; that the only change was from the proprietary 
government of a trading company, to a royal government, over the 
same dominion and colony. 

It is sufficient to state that it was so understood at the time, and 
ever afterwards. Chalmers, in his Annals, page 63^ observes that 
" history, both ancient and modern, evinces what unexperienced reason 
would infer — that no plantation ever took deep root, or advanced to 
maturity, under the influence of the interested edicts of a commercial 
combination. And the Assembly of Virginia, after it had tasted the 
results of a simple government, opposed with a firm spirit, during the 



37 

subsequent reign, the attempts, of those who endeavored to revive the 
patents and restore the corporation." 

That the colonial legislature so understood it, is certain, from the 
fact that it took part with the Crown against the company; and, in 
1642, upon an effort being made to restore the colony to the company, 
it made an earnest remonstrance and declaration against the measure, 
every word of which was applied to the misgovernment it imputed to 
the company, and the evils that would result to the colony if its mo- 
nopoly and power of government should be restored. (1 Hen. Stat, 
at Large, pages 230, 23G.) That it was so understood by the colonial 
executive, is proved by the answer of the Governor, Sir Wm. Berke- 
ley, in 1671, to one of a series of statistical inquiries of the commis- 
sioner for foreign plantations : " What are the bounds and contents 
of the land within your government.?" Answer. "As to the bounds 
of our land, it was once great — ten degrees of latitude; but now it 
has pleased his Majesty to confine us to half a degree;" (which " must 
allude," says Mr. Hening, " to the eastern boundary on the sea shore;") 
" knowingly I speak this. Pray God it may be for his Majesty's ser- 
vice, but I must fear the contrary;" (2 lb., p. 514;) quoted in the re- 
port under review, page 54. Sir William Berkeley, without doubt, 
referred to the straitening of our ancient chartered limits, by the char- 
ters of Maryland and Carolina. Chief Justice Marshall, delivering 
the opinion of the Supreme Court in Johnson vs. Mcintosh, says : 
" This charter (the charter of Virginia of May 1609) was annulled 
so far a^ respected the rights of the company, by the judgment of 
the Court of King's Bench on a writof g-wo loarranto; but the whole 
effect allowed to this judgment was to revest in the Crown the powers 
of government and the title to the lands within its limits;" (the 
limits described in the charter.) (8 Wheatou, 578.) Every word of 
the passage quoted seems to have been carefully weighed, and selected 
to express the legal consequences of the judgment upon the quo war- 
ranto against the company. 

The charter was annulled so far as respected the rights of the com- 
pany, not in respect to the rights of the colony. The powers of gov- 
ernment, the same powers which the charter had vested in the com- 
pany as proprietor, wer" revested in the Crown; the same title to the 
lands within its (the charter's) limits, which the charter had vested in 
the company, was revested in the Crown. The charter, so far from 
being annihilated, was recognized. The vacanl lands in the colony 
were thenceforth crown lands in the King's dominion of Virginia, and 



38 

the extent of" that dominion was only to be ascertained by the terri- 
torial limits described in the charter. Those lands could only be 
acquired by grants from the Crown, and they could only be granted 
by the Crown, according to a system of land laws enacted by the co- 
lonial legislature, and through the instrumentality of the colonial 
government. Of those colonial land laws we have a long series. 

The argument drawn from the judgment against the London Com- 
pany in 1624, if of avail to prove that Virginia was not thenceforth 
entitled to claim under the charter of May 1609, would prove too 
much. It would prove that she had no charter at all, for she never 
pretended to have any other: it would prove that Virginia, in her po- 
litical capacity, had no title to any territory whatever; not only no 
title to the territory northwest of the Ohio, or west of the Allegan ies, 
but no title to the island of Jamestown, or the city of Williamsburg, 
or Old Point Comfort. 

In the latter end of the reign of Charles II., writs of quo ivarranto 
were issued against all the New^ England colonies, especially Massa- 
chusetts, which were earnestly prosecuted by James II., who proceeded 
in like manner against all the colonies, even those which were propri- 
etary in their origin. As to Massachusetts, who was not to be de- 
luded or frightened into a surrender of her charter, the Court of 
Chancery in 1784, decreed '*' against the governor and company, that 
their letters patent and the enrolment thereof should be cancelled," 
Such being the fate of the strongest, the weaker colonies surrendered 
their charters, (See Chalmer's Annals, pages 414, 415, and 416; also, 
Mars. Wash., chap. 6.) 

Massachusetts obtained a new charter from William and Mary, but 
differing as to the constitution of her government widely from the old 
on--;; it converted her, too, into a "royal province." (lb. chap. 7.) 
The others obtained new charters likewise. 

The judgment of the Court of King's Bench, pronounced in the 
case of quo ivarranto, could bind none but the parties in that suit 
and their privies. The parties were, the King versus the Corporation 
The colonists were neither parties in, nor privies to this suit. And 
if the object of the prosecution, instead of being confined to what it 
was — a mere inquiry by what warrant the corporators continued to 
hold their charters of incorporation — had been to convict them of 
treason, no English lawyer dares to say that the titles of third per- 
sons, lawfully acquired from the traitors, before any act of forfeiture 
committed by them, could be affected by the conviction of treason. 



39 

So far as this assertion- refers to the coramonweaUh of Virginia, 
the committee have already answered it. This sovereign neither 
claims, nor ever has claimed, anything whatever under these charters. 
She refers to them, constantly, as she would do to any history, 
geographical treatise, or authentic map, as the best evidence the na- 
ture of the case permits, to prove what are the metes, bounds, and 
extent of the territory which she does claim. She refers to them, as 
she docs to the grants made to others — of Maryland to Lord Balti- 
more, of Carolina to Lord Clarendon and others, and of Pennsylvania 
to William Penn — as proofs of what wera and are the limits of that 
region in America called Virginia. Under none of these grants does 
she claim anything; yet they, too, furnish strong evidence to prove 
the nature and extent of that which she dues claim. This she claims 
by virtue of her declaration of sovereignty, made in June, 1776, the 
truth of which declaration then made was afterwards, in 1783, recog- 
nized by the King of Great Britain, the former sovereign of this re- 
gion. 

By this declaration and recognition, the commonwealth of Virginia 
acquired something, as this report itself concedes; and th'3 only ques- 
tion to be examined, is, what were the limits and extent of that 
something, which this report itself admits to have been so acquired 
by her. To satisfy such a question, she refers to the ancient charters, 
as well to her quondum colonists as to others. 

When the author of the report announces that from the dissolution 
of the charter of the London Company in 1624, to the commence- 
ment of the Revolution, not one act had been done, by either the 
Croivn or Virginia, recognising the existence of the charter of May, 
1609, it is supposed that he was n<>t aware of the controversy between 
Virginia and Lord Baltimore in 1634, when Virginia asserted her 
claim, under her charter, to the territory of Maryland; and the King 
in council did not directly decide against that claim, but left Vir- 
ginia to her remedy at law. Here was an act of Virginia, certainl}', if 
there was not also an act of the Crown, recognising the existence of 
the charter under which Virginia claimed. We admit the force of 
the precedent, and all the legal consequences that can fairly be de- 
duced from it. In all countries governed by the common law, pre- 
cedent is of force to make law — constitutional as well as municipal 
law; in all civilized countries, without exception, prescription seems 
title. The precedent of the charter of Maryland, in effect, estab- 
lished the right of the Crown to dismember from Virginia any part 



40 

of her territory, at its discretion, without her consent; but in no wise 
affected the right of Virginia to such territory within her ancient 
limits, as had not been dismembered from her. 

In Jefferson's Notes on Virginia, (answer to query XIII,) we find 
the following account of the treaty of capitulation, which provided 
for the security of the practical and civil rights of the colony, as 
well as its territorial rights, under its charter, and even for the re- 
storation of the territory which had been dismembered from it, 
" Articles agreed on and concluded at James city, in Virginia, for 
the surrendering and settling of that plantation, under the obedience 
and government of the commonwealth of England, by the Commis- 
sioner of the Council of State, by authority of the Parliament of 
England, and by the grand assembly of the Governor, Council, and 
Burgesses of that country," dated March 12, 1651. 

The 4th article is in these words: " That Virginia shall have 
and enjoy the ancient hounds and limits granted hy the charter of the 
former kings, and that we shall seek a new charter from the Parlia- 
ment to that purpose, against any that have entrenched upon the 
rights thereof." Here was an assertion by Virginia of her territorial 
rights under the charter of the former kings, including that of May, 
1609, in a solemn recognition thereof — not indeed by the Crown, for 
there was then no king; but by the Parliament of England nominal- 
ly; in fact, by the protector Cromwell, in whom were centred all the 
executive and legislative powers of the state, to all practical pur- 
poses. It appears, too, that Virginia claimed all the territory which 
had been granted by her charter, and redress against any that had 
entrenched upon the rights thereof — referring, doubtless, to the terri- 
tory of Maryland, which had been granted to Lord Baltimore by 
Charles I, in 1633. It was stipulated that Virginia should seek Sinew 
charter from the Parliament to that purpose — meaning that she 
should bind herself formally to hold of the Parliament instead of the 
Crown; and the purpose of that stipulation was, that she thereby 
engaged indirectly to renounce her allegiance to the house of Stuart, 
which she could hardly have been brought to do directly, for the 
body of the people were cavaliers, and very loyal. No new charter 
was ever obtained from the Parliament; there was never, from that 
time, any real Parliament to ask one of, during the continuance of 
the protectorate. Cromwell was sovereign lord and master. 

Mr. Jefferson says: "The colony supposed that, by this solemn 
convention entered into with arms in their hands, they had secured 



41 

the ancient limits of their country ; its free trade; its exemption 
from taxation but by their own assembly, and exclusion of military 
force from among them; yet, in every of these points was this con- 
vention violated by subsequent Kings and Parliaments, and other in- 
fractions of their constitution equally dangerous committed." In- 
stead of 400 miles on the seacoast, they were reduced, in the space of 
thirty years, to about 100 miles," by the protection of Lord Balti- 
more, in the enjoyment of the territory of Maryland, which had been 
before dismembered from Virginia, and by the subsequent grants of 
Pennsylvania to Penn, and of Carolina to Lord Clarendon and others. 
In this report, Mr. Hall quotes, as if authoritative on the subject, 
the declaration of Maryland in the preamble to her act of accession 
to the confederation of January, 1781, the representation of New Jer- 
sey made in Congress in June, 1778, the report of the committee of 
Congress made in November, 1781, and a speech of Mr, Wilson, of 
Pennsylvania. Mr. Wilson, (if the report of his speech is correct) 
said that, " if the investigation of right was to be considered, the 
United States ought rather to make cessions to individual States than 
receive cessions from them — the extent of the territory ceded by the 
treaty " (of peace) " being larger than all the states put together; 
that, when the claims of States came to be limited on principles of 
right, the Allegany mountains would appear to be the true bound- 
ary; this could be established without difficulty before any court or 
tribunal of the world." How Mr. Wilson got the Allegany mountains 
for the back line of all the States cannot be conjectured, unless he re- 
garded that line as established by the King's proclamation of October, 
1763, whereby the governors of the colonies were prohibited for the 
present, and until the further pleasure of the Crown should be known, 
from granting warrants of survey, or passing patents, for any lands 
beyond the sources of the rivers which fell into the Atlantic ocean 
from the west or northwest, or upon any lands whatever, which, not 
having been ceded to or purchased by the Crown, were reserved to the 
Indians; and all the territories lying on the western waters were re- 
served under the sovereignty, protection, and dominion of the Crown, 
for the use of the Indians. Now, if Mr. W. thought that a royal 
prohibition — and that, in terms, a temporary prohibition — to the colo- 
nial governments, against granting vacant lands, or Indian lands, ly- 
ing within the chartered limits of their respective colonies, took such 
lauds out of the limits of the colonies, and ousted their jurisdiction 
over them, this seems to be a very strange conclusion from the prem- 



42 

ises; for we have the authority of the Supreme Court of the United 
States (in Johnson vs. Mcintosh) that it was never understood that 
the existence of the Indian title, unextinguished by purchase or con- 
quest, to any territory within the chartered limits of any of the colo- 
nies, made those lands the less a part of the colonies in which they 
lay. It is surprising that a Peunsylvanian should have admitted 
that it was competent to the Crown, at its will and pleasure, to take 
away any part of the lands within the limits of a proprietary colony, 
while the charter of the proprietor remained in force unimpaired; and 
as to the other colonies, the "royal provinces," the Crown might 
rightfully have interdicted the grant of any Croion lands lying in any 
part of them; or it might have granted the property and the right of 
disposing of any tract of vacant country within their limits — leaving 
them yet within the limits, jurisdiction, and government of the colony 
in which they lay. Thus the Crown might have interdicted the sale 
and grant of the palace grounds within and near the city of Williams- 
burg; and it did grant the whole of the northern neck of Virginia to 
Lord Fairfax, with absolute power to dispose of it; and he, in fact, 
opened a land office to dispose of it, and did grant it out to individ- 
uals upon the terms he thought proper to prescribe; and yet those 
palace lands would have remained, and the northern neck was always 
understood to remain, part of Virginia, and subject to his jurisdic- 
tion. But the State of Pennsylvania did, it is supposed, entertain a 
different opinion from that advanced by her delegate in Congress. In 
examining the correspondence between the commissioners of Pennsyl- 
vania (of whom David Rittenhouse was one, whose character is well 
known) and the commissioners of Virginia, in the treaty for the ad- 
justment of the boundaries between the two States in 1779, it is found 
that the commissioner of Pennsylvania, notwithstanding the royal 
proclamation of 1763, claimed, under the charter to Penn, a large 
tract of country west of the AUeganies, and, moreover admitted most 
distinctly that Virginia had a right still to claim under her charter of 
May, 1609; though they suggested that the boundaries described in 
that charter would not take away any part of the land lying within 
the charter of Pennsylvania, they admitted that all the lands beyond 
the AUeganies, south and west of Pennsylvania, belonged to Virginia 
by force of her charter of May, 1609; and this was the very basis of 
the negotiation and of the final arrangement between the two States. 
(See 10 Hen. Stat, at Large, p. 521—536.) 
France, in virtue of her discovery of the mouth and course of the 



43 

Mississippi, up as far as the 33d degree of north latitude, claimed all 
that extensive district of country; before that, she claimed all the 
lands watered by the streams emptying into the lakes. These con- 
flicting clainas between the British colonies and France, ultimately 
were the cause of the war in 1756. France, in pursuance of her 
claim, had established a chain of posts from Canada to the Ohio, and 
along that river, and in the country watered by its tributaries; and 
the Crown of England had granted to the Ohio Company a tract of 
600,000 acres of land in the disputed country. Collisions immedi- 
ately took place between the French and Ohio Company: and these 
were the immediate cause of the war upon this continent. Mr. Mar- 
shall says, in his life of Washington, ch. 11, page 377, that the tract 
of land granted to the Ohio Company " was actually granted as part 
of the territory of Virginia ; and Dinwiddle, the Lieutenant Gov- 
ernor of Virginia, considering the French aggressions as an invasion 
of the colony, the interests of which were committed to him, laid the 
subject before the colonial assembly, and despatched General (then 
Major) Washington with a letter to the commandant of the French 
forces on the Ohio, requiring him to withdraw from the tlominions of 
the British Crown. It was the colonial government of Virginia which 
first interposed — it was the colonial government of Virginia that com- 
menced the war, with a corps of provincial troops under Major Wash- 
ington, which was def«^ated at the Little Meadows." — (lb ch. 11, page 
367, 379.) The treaty of peace of 1763 extinguished the claim of 
France to all the territories south of the line of the lakes, and east of 
the Mississippi; and thus secured to the colony of Virginia the line 
of the lakes for her northwestern ' boundary, (as she had always 
claimed,) and restricted her boundary on the west to the Mississippi. 
Accordingly, Mr. Jefferson, in his Notes on Virginia, traces the 
boundaries of the State up to the charter of May, 1609, and the suc- 
cessive limitations upon those boundaries, to the charters of Mary- 
land, Carolina, and Pennsylvania ; then to the treaty of peace be- 
tween Great Britain and France of 1763, which limited Virginia to 
the Mississippi on the west, and to the line of the lakes on the north- 
west; and, finally, to the cession of the territory northwest of the 
Ohio, by Virginia, to the United States, which restricted our territory 
on that side by the Ohio. Can any one suppose that Mr. Jefferson 
was ignorant of the proceedings and judgment on the quo luarranto 
against the London Ci»m[)any in 1624? or that he did not understand 



44 

the effect of that proceeding upon the territorial rights of the colony 
under its charter of May, 1609 ? 

Mr. Hall, in his report, has spared us the trouble of showing Mr. 
Madison's opinions, viz: that he had no doubt of the original title of 
Virginia to the territory in question, at the same time that he thought 
that good policy dictated to her the propriety of ceding that title to 
the United States. It may be well to explain, that when Mr. Madi- 
son said (in his letter to Mr. Randolph of the 10th of September, 
1782, quoted in the report, page 61,) that "if the decision of the 
State, on the claims of the companies, could be saved, he hoped her 
other conditions would be relaxed," he meant the decision of Virginia 
against the claims of the Vandalia, the Indiana, and some other com- 
panies, which Virginia deemed contrary to her law, and declared null 
and void by her statute of May session, 1779, ch. 12, (2 Rev. Code — 
app. 2, ch. 4, p. 357;) and when those companies applied to Congress 
for its sanction of those claims, earnestly protested against the action 
of Congress on the subject, by her remonstrance of the 14th of De- 
cember, 1799.— (10 Hen. Stat, at Large, p. 557-8.) 

It is wortlly of remark, that Mr. Madison was in correspondence 
with Mr. Edmund Pendleton touching the claim of the United States 
for a cession of the territory from Virginia. Mr. P. belonged not to 
the executive or legislative department of Virginia, but to the judi- 
ciary; and Mr. M., no doubt, had recourse to him for information, as 
the person most likely to possess and to furnish it; and though Mr, 
P.'s views and opinions are not given us, we may be sure that Mr, 
M.'s are an exact exponent of his. To those who know Mr. P.'s 
character and history, his long and intimate acquaintance with all our 
colonial affairs, his diligence of research, his opportunity of acquir- 
ing full and accurate information, and his capacity, intellectual and 
moral, to deduce the truth from the information he had acquired, it 
will, perhaps, not be thought extravagant to say that he, of all men, 
was the person best informed on this and all like subjects, so far as 
Virginia was concerned. 

Having clearly established that the views presented by Mr. Hall, in 
the report under review relative to the boundaries of Virginia, were 
unfounded and altogether erroneous; and moreover having shown that 
the importance attached to the revocation of the chnrter by the Crown 
of England was equally futile, — it is deemed proper, as the report in 
other respects gravely questions the right of Virginia to her western 



45 

territory, to extend our inquiries somewhat farther, so as to embrace 
most of the prominent points tending to elucidate and establish her 
right to the territory, which by her deed of cession, she conveyed, 
under certain conditions, to this Government. 

Virginia, in her constitution adopted June 29, 1776, plainly states 
her boundaries in the following words : 

" The territories contained within the charters erecting the colonies 
of Maryland, Pennsylvania, and North and ^outh Carolina, are 
hereby ceded, released, and forever confirmed, to the people of those 
colonies, respectively, with all the rights of property, jurisdiction, and 
government, and all other rights whatsoever, which might, at any time 
heretofore, have been claimed by Virginia, except the free navigation 
and use of the rivers Potomac and Tokomoke, with the property of 
the Virginia shores or strands bordering on either of the said rivers, 
and all improvements which have been or shall be made thereon. The 
western and northern extent of Virginia shall, in all other respects, 
stand as fixed by the charter of King James I, in the year 1609; and 
by the public treaty of peace between the courts of Great Britain and 
France, in the year 1763, unless, by act of Legislature, one or more 
territories shall hereafter be laid off and governments established west- 
ward of the Allegany mountains; and no purchase of land shall be 
made of the Indian natives, but on behalf of thp public, by authority 
of the General Assembly." 

This, it will be seen, is in accordance with the limits and bounda- 
ries which we have successfully established to have been indicated by 
the charter of 1609, and recognized and acquiesced in by the country 
at large; restricted only by those limitations containnl in the subse- 
quent charters granted by the Crown to Lord Clarendon. Lord Balti- 
more, and William Penn. Virginia thus claimed all the territory 
within her chartered limits, and embraced in the treaty of 1763, be- 
tween France and Great Britain, except the portions alluded to; which 
being conveyed by the British Crown to the parties just named, she 
therefore abandoned her right to all that portion of her domain in- 
cluded in those charters. Her claim to territory in 1776 was co- 
extensive with her original chartered limits, and the terms ot the 
treaty of 1763, with the restrictions just stated; nor did she lay claim 
to lands within the chartered limits of any cf her sister colonies. 

In examining the colonial charters, and the different claims set up 
to the western territory by several of the old States, it is found that 
Connecticut claimed the territory north of the 41st degree of north 



46 

latitude, extending the full breadth of her charter from the Atlantic 
to the Pacific ocean. But it must be borne in mind that there was a 
proviso in the charter 2^recluding any encroachment on the southern 
or Virginia colony, or upon lands then in the 2^ossessio7i of any other 
Christian nation lying zuest of the Plymouth colony. It is believed 
that Connecticut rested her claim to a large portion of Pennsylvania, 
partly upon her charter, and, to some extent, on Indian purchases. 
The citizens of Conyecticut insisted that their charter gave them the 
same breadth of laud from the Atlantic to the Western ocean. This 
Pennsylvania controverted, on the grounds that, at the time the char- 
ter was granted to Connecticut, the Dutch held and possessed the 
land along the Hudson river, and that bacJc of them the French 
claimed. Besides that, at a later period New York and Connecticut 
adjusted their boundaries, because of the King's having exercised his 
prerogative of curtailing the old charters by subsequent grants to 
other persons. 

Chalmers, in his Annals, page 575, states, that •' not only had New 
Netherlands been granted to the Duke of York, but one-half of Con- 
necticut; which gave rise to one of those disputes that can only be 
settled by amicable treaty, because no acknowledged principles existed 
that were applicable to the pretensions of both. This colony, ac- 
cordingly, sput commissioners to New York in December, 1664, to 
decide a dispute which so much involved the peace of both." 

The charter of Connecticut was granted in 1661; that of New 
York, in 1664; that of Pennsylvania, in 1681. In 1684 the commis- 
sioners deputed by the King marked the boundaries between New 
York and Conu'^^cticut, which were assented to by all the parties. 
On account of the adjustment of this western boundary of Connec- 
ticut, and because the grant to Penn was subsequent to the Connec- 
ticut charter, as well as for other reasons, it was urged that the latter 
had no valid claim to any portion of the northern part of Penn- 
sylvania. 

Massachusetts, also, under her charter, laid claim to an immense 
territory extending from sea to sea; and from that, as well as on ac- 
count of purchases, she claimed the land now embraced in New Hamp- 
shire and Maine. It is stated in volume 2, page 9, of Williamson's 
History of Maine, that " the charter of William and Mary, of Octo- 
ber 7, 1691, embraciid the whole territory of Maine in two great divi- 
sions : one, extending from Piscataqua to Ivpnnebeck, was called the 
Province of Maine; the other, including all between Kennebeck and 



47 

the St. Croix, was usually deauminateol Sagadahock." "After the 
treat}' of Ryswick, (11th September, 1697,) France, by treaty, and 
Massachusetts, by charter, both strenuously claimed the Sagadahock 
province, or country between Kennebeck and St. Croi.x." (Ibid. vol. 
2, page 26.) 

In vol. 8 of Wheaton, at pages 578 and 580, Johnson vs. Mcintosh, 
it is stated that "a patent for Maine was granted to Georges;" and 
that afterwards Charles the Second was extremely anxious to acquire 
theproperty of Maine, but that the grantees sold it to Massachusetts." 

Chalmers, in his Annals, page 379, observes, that " while Charles, 
before the complaints above mentioned were fully adjusted, was in 
treaty with Georges, in order to acquire liis interest, the general court 
silly purchased his title. Mortified and offended beyond measure, 
that monarch, though willing to forget past errors and mistakes, re- 
quired it to give up the purchase, and to return the writings upon 
being reimbursed the price." 

But the claim of Massachusetts to territory beyond her present 
western boundary, it is fair to presume, was arrested by causes similar 
to those which restricted the State of Connecticut to her present 
limits. 

Smith, in his History of New York, (pages 13 and 14,) observes, 
that " the King granted a patent, on the 12th of March, 1664, to his 
brother, the Duke of York and Albany, for sundry tracts of land in 
America ; the boundaries of which, because they have given rise to 
important and animated debates, it may not be improper to transcribe, 
viz : all that part of the main land of New England, beginning at a 
certain place called or known by the name of St. Croix, next adjoining 
New Scotland, in America, and from thence extending along the sea- 
coast unto a certain place called Pemaquie, or Pemequid, and so up 
the river thereof to the further west head of the same as it tendeth 
northward, and extending fnmi thence to the river of Kimbequin, and 
so upwards, by the shortest course, ti? the river Canada northward ; 
and, also, all that island or islands commonly called by the several 
name or names of Meitowacks or Long Islands, situate and being 
towards the west of Cape Cod and the narrow Higansetts, abutting 
upon the main land between the two rivers, then called or known by 
the several names of Connecticut and Hudson's rivers ; together also 
with the said river, called Hudson's river, and all the land from the 
west side of Connecticut river to the east side of Delaware bay ; and 



48 

also all those several islands called or known by the nasnes of Martin's 
Vineyard, or Nantucks, otherwise Nantucket, together," &c. 

"Charles II granted to the Duke of York, in March, 1664, the 
region extending from the western hanks of Connecticut to the eastern 
shore of the Delaware, together with Long Island — conferring the 
powers of government, civil and military ; and considering neither the 
plantations of Connecticut nor of Holland to exist. — (Chalmers' An- 
nals, page 573.) 

"As the 'validity oi the grant to the Duke of York, while the 
Dutch were in qniet possession of the country, had been very justly 
questioned, he thought it prudent to obtain a new one in June, 1674 ; 
it confirmed the former." — (Ibid, page 579.) 

" When the Duke of York ascended the throne of his brother, this 
province, with its dependencies, devolved on the Crown." — (Ibid, page 
588.) 

The State of New York, it appears, did not rest her claim to the 
western territory upon her charter, but mainly upon Indian purchases. 
The treaty of Stanwix (this was the name of a fort in the province 
of New York) in 1768, the result of a congress in which the colonies 
and the Six Nations were' represented, perhaps in conjunction with- 
other pretensions of equal importance, constitutes, it is supposed, the 
strongest claim that State could urge to the western territory em- 
braced within the chartered limits of Virginia. But to place this 
view of the subject more authoritatively before the country, the com- 
mittee respectfully invite attention to the following extracts from the 
1st vol. Laws of United States and the Congressional Journal : 

" The whole territory north of the river Ohio, and west of the 
State of Pennsylvania, extending northwardly to the northern boun- 
dary of the United States, and westwardly to the Mississippi, was 
claimed by Virginia ; and that State was in possession of the French 
settlements of Vincennes and Illinois, which she had occupied and 
defended during the revolutionary war. The States of Massachusetts 
and Connecticut claimed all that part which was within the breadth 
of their respective charters ; and the State of New York had also an 
indeterminate claim to the country." — (Laws United States, vol, 1, 
page 452.) 

" The report of the committee, consisting of Messrs. Boudinot, 
Varnum, Jenifer, Smith and Livermore, on the cessions of New York, 



49 

Connecticut and Virginia, &c., bein^ the order of the day, &c." (See 
Congressional Journal of Maj' 1, 1782, pages 21, 22 and 23.) 

In that report it is stated, " That the agents for New York and 
Connecticut laid before the committee their several claims to lands, 
said to be contained within their several States, together with 
vouchers, &c. ; but that the Virginia delegates declined any elucida- 
tion of their claim, &c., but delivered to the committee a written 
statement." This written statement not being printed in the Journal, 
was found in the De[)artment of State amongst the old papers there 
filed for safekeeping, and is as follows : 

'' No. 20. 
" Protest of the Virginia delegates. 

" That no misconstruction, unfevorable to the territorial rights of 
the State of Virginia, may be put on the refusal of its delegates to 
exhibit evidence in support of them before the committee to whom 
the territorial cessions of Virginia, New York and Connecticut were 
referred, according to the request of that committee, and the example 
of the delegates from New York and Connecticut, the considerations 
on which that refusal was grounded, and of which the committee 
were verbally apprized before any progress was made in the present 
inquiry, are now stated to them in writing : 

" 1st. The acts of Congress, in compliance with which the above 
mentioned cessions were made, are f)unded on the supposed inexpe- 
diency of discussing the questions of right, and recommend to the 
several States having territorial claims in the western country a liberal 
surrender of a portion of those claims for the benefit of the United 
States, as the most advisable means of removing the embarrassments 
which such questions created. To make these acts of surrender, then, 
the basis of a discussion of territorial rights, is a direct contravention 
of the acts of Congress, and tends to diminish the weight and efficacy 
of future recommendations from them to their constituents. 

"2d. If the present discussion has been opened upon an opinion 
that Congress can assume for the use of the United States any por- 
tion of territory claimed by an individual State, and supposed by 
them not to fall within its limits, we are now to learn the page of the 
confederation in which this power is delegated ; if upon an opinion 

that Congress may exercise jurisdiction in territorial controversies 
7 



50 

between individual States, we refer the committee to the article of 
the coufirderation which vests an exclusive jurisdiction in such cases 
in another tribunal. 

" 3d. The cases now before the committee may eventually be brought 
before that constitutional tribunal. Ought not its decrees to be free 
from the bias and suspicion to which they may be exposed by the most 
indirect prejudication on the subject of right by so high an authority 
as Congress, or even a committee of Congress ? 

''4th. Although it should be confessed that the cognizance of ter- 
ritorial rights belongs to Congress, or a committee of Congress, 
(against which position we strenuously protest,) yet the very form' 
of conducting this business, if scanned by the ordinary rules of 
justice, is manifestly and essentially defective. Without any pre- 
vious notice to the parties of an intention to discuss questions of 
right, and receive evidence relating to them, — nay. after expressly 
holding forth to them an intention to exclude all such questions, they 
are now called upon to exhibit the evidence which supports their re- 
spective claims, by which means prepossessions in favor of one party 
may be erected by arguments and representations which another party 
is unprepared to controvert. 

" 5th. Nor can the conditions or reservations annexed to some of the 
cessions render a discussion of territorial rights necessary to determme 
the authority of Congress to accept them. For even if these reserva- 
tions should interfere with the claims of any other State, what in- 
jury can arise? since the doors of the copstitutional tribunal will not 
be barred to them; and it may at the same time be declared by Con- 
gress that such acceptance shall in no wise effect them. 

"JOS. JONES, 
"JAMES MADISON, Jr., 
"EDMUND RANDOLPH." 

A true copy from the original filed in the Department of State, 

W. S. DERRICK. 
Febeuary 5, 1844. 

The foregoing protest presents very conclusive reasons for then de- 
clining to discuss the right and title of Virginia to her territory. 
But it is a matter of regret that the able gentlemen who presented 
this paper did not afterwards place the Virginia title in its true light 



51 

before the country, so as to obviate such imputations as the author, 
in the report now under review, has seen fit for the first time to dig- 
nify, by formally urging them in a report addressed to the House of 
Representatives. From their known ability and intimate acquaintance 
with the subject, they could most effeclHally have vindicated the 
claim of Virginia, and established her right to all the western terri- 
tory, which she contemplated ceding to the United States. At this 
late day, the subject is not only deprived of much of its interest, but 
it has ceased to be a question of practical importance. Notwith- 
standing this conviction, yet, deeming the assumptions of the report 
under review no less ill-timed and unfounded than prejudicial to the 
fame and character of the State of Virginia, it was deemed proper, 
though at this late day, to repel those extraordinary assumptions, 
and to place such views before the country in reply, as are sustained 
by facts and authorities, accompanied with such an exposition of 
them as our limited time would permit. 

The report of the committee of the House of Representatives in 
1782, after a brief statement, contains several resolutions, with the 
reasons for them appended thereto. From the purport of the resolu- 
tions, as well as from the character of the particular reasons adduced 
in their support, it is clear that Massachusetts, New York, Connecti- 
cut, &c., did not ground their claims on chartered rights or bounda- 
ries; for, if they had depeud3d on them, they would also have been 
alluded to by the committee, either in their report, resolutions, or 
reasons. So it is fair to infer that they deemed the territory in ques- 
tion as lying outside of their chartered boundaries. 

This was not only the fact, but the reasoning of the committee 
conveyed no other impression. It is well, too, to keep in mind the 
fact, that the Virginia charter was anterior to either of the northern 
charters; and that each of the New England charters contained a 
clause, protecting the soil and limits of the south Virginia colony 
from aggression by those claiming under them. 

In corroboration of what has just been urged, the attention of the 
House is invited to the two first reasons appended to the report just 
referred to, which are as follows: 

'■'■First. It appeared to your committee, from the vouchers laid 
before them, that all the lands ceded, or pretended to be ceded to the 
United States by the State of Virginia, are within the claims of the 
^tates of Mq^ssachusetts, Connecticut, and New York; being a part 



52 

of the lands belonging to the Six Nations of Indians and their trib- 
utaries. 

'■'•Second. It appeared that a great part of the lands claimed by 
the State of Virginia, and requested to be guarantied to them by 
Congress, is also within the claim of the State of New York, being 
also a part of the country of the said Six Nations and their tributa- 
ries." 

The fair inference to be drawn from the proceedings in Congress — 
so far, at least, as the printed journals present a history of them — is, 
that not one of the States objected to the claims of Virginia as en- 
croaching upon their chartered rights or boundaries. But if those 
States relied upon Indian purchases, and thought, on that account, 
they had superior claims over Virginia to the western lands, yet a 
recurrence to history, it is supposed, will but poorly sustain them on 
that point. Indeed, from the hasty examination which we have given 
the question, our investigations induce the belief that, if Virginia 
rested her claim solely on such a precarious tenure as that, still she 
would, before an impartial tribunal, establish her right. In support 
of the conclusions we have arrived at on this point, we respectfully 
invite the attention of the House of Representatives to the following 
brief account of the treaties, deeds, sales, &c., between the Six Na- 
tions of Indians and Virginia: 

In the reign of George the Second, in the year 1744, a treaty was 
concluded at Lancaster, Penn., between the Six nations of Indians 
and Lieutenant Governor Thomas of that province, and the coramis- 
eioners, from Maryland, and Thomas Lee and William Beverly, com- 
missioners from Virginia. 

During the progress of negotiations, on the 28th of June, the Vir- 
ginia commissioners observed, ''that the first treaty between the 
great King, in behalf of his subjects in Virginia, and you, that we 
can find, was made at Albany, by Colonel Henry Coursey, seventy 
years since. This was a treaty of friendship. The next treaty was 
also at Albany, about fifty-eight years ago, with Lord Howard, Gov- 
ernor of Virginia. Then you declared yourselves subjects of the great 
King, our father^ and gave up all your lands for his protection. At 
a subsequent treaty with Governor Spots wood at Albany, wherein 
(they said) you have not recited it as it is; for the white people, your 
brethren of Virginia, are, in no article of that treaty, prohibited to 
pass and settle to the westivard of the great mountains. It is t\\(\ 



53 

Indians tributary to Virginia that are restrained, as you and your 
tributary Indians, are from passing to the eastward of the same 
mountains." 

On the 2d of July, the commissioner.s proposed that '' we will give 
you, our brethren of the Six Nations, what goods they had with them, 
costing £200, Pennsylvania ruoney, and £200 in gold, upon condition 
that you immediately make a deed, recognising the King's right to all 
the lands that are, or shall be, by his Majesty's appointment, in the 
colony of Virginia." This resulted in the Six Nations executing a 
deed of their lands to the King. 

In April, 1752, tlie Governor of Virginia appointed Joshua Fry, 
Lunsford Loamax, and James Patton, commissioners, in behalf of 
the colony, to visit the Ohio, with instructions to obtain a confirma- 
tion, from the Indians settled there, of the Lancaster deed. In 
obedience to these instructions, a treaty was held at Loggstown, on 
the Ohio, between the commissioners and the Six Nations. The Lan- 
caster deed of 1744 was again, by a deed dated the 13th of June, 
1752, fully recognized and sanctioned in the following words, viz : 
" We, sachems and chiefs of the said Six Nations, now met in council 
at Loggstown, do hereby signify our consent and confirmation of the 
said, de^^d, in as full and ample a manner as if the same was here re- 
cited." — See Colony Titles, pages from 29 to 68 

"Owing to his temper, as well as to his situation, Dongan (then 
Governor of New York) engaged, more than any of his predecessors, 
in the affairs of the tribes bordering on his province, which had so 
great an influence on its prosperity and peace. When the French set- 
tled in Canada, during the year 1603, they found the Five Nations, 
which, under the names of Mohawks, Oneydoes, Onondrigas, Cawgu- 
gas, and Senekas, had been confederated from the most ancient times, 
engaged in implacable warfare with the Adirondacks, the most power- 
ful tribe in that country." Subsequently to this war, and about 1680, 
"the Five Nations, in order to gratify their passion for war, to re- 
venge insults offered during the time of their distress, turned their 
arms southward, and conquered the country from the Mississippi to 
the borders of the plantations as far as Carolina, destroying numerous 
nations, whose names no longer remain. And Virginia and Maryland 
were involved often in the calamities of their allies, whom they were 
unable to protect, except by treaties, which were generally infringed 
because they could not be enforced. In July, 1684, however, Lord 
Effinghfim and Dongan concluded a definitive peace with these pow- 



54 

erfal tribes for all the settlements; which was long inviolably kept, 
because they soon I'enewed the war with their ancient enemies the 
French." — See Chalmers's Annals, pages 585, 587. 

" The Six Nations, occupying settlements in the western part of the 
colony, and having been frequently engaged in wars with the French, 
were considered as a most important barrier to our frontier American 
settlements; it was, on that account, deemed expedient to enter into 
a treaty with them." 

"In the year 1684, Lord Howard of Eflfingham, at that time Grov- 
ernor of Virginia, with two members of his council, visited Albany, 
to make a treaty with the Six Nations. On the 13th of July, in the 
presence of the Governor of New York and the magistrates of Al- 
bany, he addressed a speech to them, containing proposals for a fu- 
ture alliance and friendship, which were formerly accepted and rat- 
ified." 

" The Six Nations stipulated to submit their lands to the Crown of 
England, 'to be protected and defended by his Majesty, his h°irs and 
successors forever, to and f)r the use of them (the said Indians) their 
heirs and successors.'" 

The treaty of Utrecht, in 1763, contains the assent of the French 
nation to the negotiations previously entered into between the Six 
Nations and the English, in the following words, viz: 

" The subjects. of France inhabiting Canada, and others, shall here- 
after give no hinderance or molestation to the Five Nations or cantons 
of Indians, subject to the dommion of Great Britain, nor to the other 
natives of America, who are friends to the same." — See Colony Titles, 
pages 30 to 50. , 

It has been already stated that the treaty and purchase made by 
the Governor of New York with the Six Nations were made and 
entered into at Fort Stanwix, in the year 1768. This, then, was sub- 
sequent to the purchases by Virginia, as the foregoing treaties indi- 
cate, and after the close of the French war, which extended the limits 
of Virginia up to the lakes, and west to the Mississippi river. But 
purchases of land from the Indians, according to an understanding 
entered into as early as 1665, were precluded, unless by the sanction- 
and consent of the Governor. 

In the chapter treating on the united colonies, the author observes 
that " it instantly became a fundamental principle of colonial juris- 
prudence, that, in order to form a valid title to any portion of the 
general clomain, it was necessary to shovi^ p, grant either mediately or 



55 

directly from English monarchs; and this suggests the principal cause 
of the general solicitude to procure patents from the sovereigns of 
England at every period, because in them the ivhole was supposed to 
be vested." — Chalmers's Annals, p. 6.77. 

" A great dispute between the inhabitants of Jamaica, or Long 
Island, which was adjusted by Colonel Nicholls, on the 2d of Janu- 
ary, 1665, gave rise to a salutary institution, which has, in part, ob- 
tained ever since. The controversy respected Indian deeds, and thence- 
forth it was ordained that no purchase from the Ind^ians, without the 
Governor's license, executed in his presence, should be valid." — Smith's 
History of New York, p. 35. 

In addition to all this authority, the Legislature of Virginia in 1662, 
passed an act which forbade purchases of land from the Indians; and 
it does not appear that it was ever repealed. — See vol. 2 Hening's 
Statutes at Large, p. 139. 

What has been adduced relative to Indian treaties, sales and deeds, 
it is believed is sufficient, should the conflicting claims of the several 
States be placed on tiiis ground, to establish th« right of Virginia to 
the territory which she ceded to this Government. But, as we have 
it in our power to produce the highest judicial authority known to this 
country, which places the claims of Virginia beyond cavil or dispute, 
we will close the discussion on this branch of our inquiries by citing 
the conclusive adjudications of the federal court upon several of the 
points previously argued in this report. As those points are treated 
by the chief justice and one of the associate justices with great clear- 
ness and ability, it is deemed proper, on that account, as well as on 
account of the great magnitude of the questions, to extract copiously 
from their opinions. 

Judge Baldwin, in his Constitutional Views, page 80, remarks that 
" this guaranty was fulfilled by the treaty of peace, in which ' his 
Britannic Majesty acknowledges the said United States, to wit: New 
Hampshire, &c., to be free, sovereign, and independent States.' — 1 
Laws, 196. This recognition (relating back to the separate, or unan- 
imous declarations by the States, as this court have held it) has the 
same effect as if the States had then assumed the same position, by 
the previous authority of the King; the treaty not being a grant, but 
a recognition, and subsequent ratification of their pre-existing con- 
dition; and all acts which had declared and defined it previous to 
treaty, relating back to 1776." 

"The people of North Carolina declared that all the territory withiu 



56 

the bounds of the State was the right and property of the people, to 
be held by them in fidl sovereignty. — Laws of N. C, 275-6, Book 
Const. 234-5, December, 1776." (Baldwin's Constitutional Views, 
page 81.) 

"Geort^ia insisted on that line (the 31st de(i;ree of north latitude) 
as the limit which she was entitled to, and which she iuid laid claim 
to, when she declared herself independent; or which the United States 
had asserted in her behalf, in the declaration of independence."— r- 
(Ibid, page 75.) 

It is remarked by Judge Baldwin, page 84, that "all charters and 
grants of power or property, are governed by the same rules of con- 
struction; all questions toucliing the boundaries of territory, or lines 
of jurisdiction, must be referred back to the original sovereign, in 
whom both were vested; and thence deduced, by a regular chain of 
title, to the contending parties. So this court has done, as to the 
controversies between the United States and foreign States."— -2 Pet. 
299, 314. 

At page 87 he observes, that "By the Revolution, the duties, as 
well as the })owers of government, devolved on the people of New 
Hampshire, (4 Wh. p. 651;) and, of course, to the people of each 
separate State." By the treaty of peace, " the powers of government 
and the right of soil, wiiich had previously been in Great Britain, 
passed definitely to these States." — 8 Wh. p. 584. 

And it was held by the Supreme Court of the United States " that 
the only territory which in fact belonged to the United States in 1787 
(that which lay west of Pennsylvania and north of the Ohio), was ac- 
quired by the cession from Virginia," &c. — 5 Wh. p. 375. 

He remarks, at page 93, that " the original right of the Crown to 
grant the right of soil and the powers of government in and over the 
proprietary provinces, and the right of soil in the vacant lands in the 
royal and chartered colonies, was never drawn in question, after the 
Revolution^ by any of the States on behalf of the confederacy; for 
whenever the Crown had made a grant, it was universally admitted 
that it was valid. When the proprietary governments were super- 
seded by those of the States, the proprietaries were left in the quiet 
enjoyment of their rights of property, as in New Jersey to this day; 
or the States were suffered to resume their vacant lands, and to hold 
them without any claim by the other States for any share, as in Penn- 
sylvania, (Vide 1 Dall. L. Pa. 822,) and in Delaware, (2 Laws D. 
J074-'5.) But the States which had no vacant lands, denied the ex- 



57 

elusive rierht of those States whose riojht of boundaries extended 
originally to the South sea, and after the treaty of peace of 1763 to 
the Mississippi; and set up a claim to a proportion of the unappro- 
priated lands within the limits of those States, as a common acquisi- 
tion by the confederation, for the common benefit, in right of conquest, 
irom Great Britain; but admitted the legislative power of the States 
over them, making no claim to jurisdiction. Those States, however, 
claimed the lands, on the grounds before stated, as their own, by the 
devolution of the Crown to them, the guaranty by the proposed arti- 
cles of confederacy, and of the treaty with France. 

"To put an end to all future controversy, it was by the ninth arti- 
cle of the former provided 'that no State should be deprived of ter- 
ritory for the benefit of the United States.' Connecting this proviso 
with the third article, and the second and eleventh articles of the 
treaty of alliance with France, it is clear that when the confederation 
became the act of all the States, Congress could, neither by treaty 
nor otherwise, do any valid act to affect the territorial rights of the 
States, without a direct violation of the expressed stipulations of 
both guaranties and this proviso. This was the principal reason why 
the final adoption of these articles was delay^-d from November, 1777, 
till March, 1781. Various attempts were made in Congress to strike 
out, or so modify this proviso, that the vacant lands should be deemed 
to be the property of all the States, as a common fund for defraying 
the expenses of the war; which having all failed, some of the States 
refused to adopt them. In March, 1780, Congress, finding that the 
controversy could be no otherwise terminated, recommended to the 
States to make liberal cessions of their western lands to the United 
States; to which Virginia and New York agreeing, the articles were 
signed, and cessions accordingly made by those and other States, which 
were deemed satisfactory.— Vide 1 Laws U. S. pp. 11, 12, 20, 22, 24, 
467 to 482; 5 Wh. 376^, 377." 

"Now, as no conquests were made by the confederacy, and the pos- 
sessions of the several States were fixed by the treaty of peace, ac- 
cording to their original boundaries, the confederacy could acquire no 
territory as possessions or jurisdiction in matters of government; and 
this court have declared, in four solemn decisions, that they did not." 
(4 Cr. 212; 6 Cr. 142; 12 Wh. 524; lb. 534.) 

"Taking it, therefore, as a political or judicial question, it has long 
since been put at rest, not only by the authority of the constitution, 
and all the departments of the Goverhment, but in public opinion. 



58 



It may then be assumed as an unquestioned proposition, that the 
United States can have no right of soil within any of the States of 
this Union, unless by a cession from the particular States, or a foreign 
State, who was the original, absolute proprietary thereof." (Bald- 
win's Constitutional Views, p. 95.) 

[From Wheaton's Reports, volume 8] 

Johnson and Graham's Lessee 
vs. 
William McIntosh. 

[A title to lands under grants to private individuals, made by Indian tribes or nations 
northwest of the river Ohio, in 1773 and 1775, cannot be recognized in courts of the 
United States] 

"Mr. Chief Justice Marshall delivered the opinion of the court. 
The plaintiffs in this case claim the land, in their declaration men- 
tioned, under two grants, purporting to be made, the first in 1773, 
and the last in 1775, by the chiefs of certain Indian tribes, constitu- 
ting the Illinois and the Piankeshaw nations; and the question is, 
whether this title can be recognized in the courts of the United 
States ? 

The facts, as stated in the case agreed, show the authority of the 
chiefs who executed this conveyance, so far as it could be given by 
their own people; and likewise show that the particular tribes for 
whom these chiefs acted were in rightful possession of the land they 
sold. The inquiry, therefore, is, in a great measure, confined to the 
power of Indians to give, and of private individuals to receive, a title 
which can be sustained in the courts of this country. 

'•The exclusion of all other Europeans necessarily gave to the 
nation making the discovery the sole right of acquiring the soil from 
the natives, and establishing settlements upon it. It was a right 
with which no Europeans could interfere. It was a right which all 
asserted for themselves; and to the assertion of which, by others, all 
assented, 

" Those relations which were to exist between the discoverer and 
the natives, were to be regulated by themselves. The rights thus 
acquired being exclusive, no other power could interpose between 
them. 

"While the different nations of Europe respected the right of the 
natives as occupants, they asserted the ultimate dominion to be in 



59 

themselves; and claimed and exercised, as a consequence of this ul- 
timate dominion, a power to grant the soil, wliile yet in the posses- 
sion of the natives. These grants have been understood by all to 
convey a title to the grantees, subject only to the Indian right of oc- 
cupancy. 

" The history of America, from its discovery to the present day, 
proves, we think, the universal recognition of these principles. 

" The charter granted to Sir Humphrey Gilbert, in 1578, author- 
izes him to discover and take possession of such remote, heathen, and 
barbarous lands, as were not actually possessed by any Christian prince 
or people. This charter was afterwards renewed to Sir Walter Ra- 
leigh, in nearly the same terms. 

"By the charter of 1606, under which the first permanent English 
settlement on this continent was made, James I granted to Sir 
Thomas Gates and others, whose territories in America lying on the 
seacoast between the 34th and 45th degrees of north latitude, and 
which either belonged to that monarch, or were not then possessed by 
any other Christian prince or people. 

" The grantees were divided into two companies, at their own re- 
quest. The first, or southern colony, was directed to settle between 
the 34th and 41st degrees of north latitude; and the second, or 
northern colony, between the 38th and 45th degrees. 

" In 1609, after some expensive and not very successful attempts 
at settlement had been made, a new and more enlarged charter was 
given by the Crown to the fir.st colony, in which the King granted to 
the 'treasurer and company of adventurers of the city of London 
for the first colony in Virginia,' in absolute property, the lands ex- 
tending along the seacoasfc four hundred miles, and into the land, 
throughout from sea to sea. This charter, which is a part of the 
special verdict in this cause, was annulled, so far as respected the 
rights of the company, by the judgment of the Court of King's 
Bench, on a writ of quo loarranto; but the whole effect allowed to 
this judgment was, to revest in the Crown the powers of government, 
and the title to the lands within its limits. 

" At the solicitation of those that held under the grant to the sec- 
ond or northern colony, a new and more enlarged charter was granted 
to the Duke of Lenox and others, in 1620, who were denominated 
the Plymouth Company, conveying to them, in absolute property, 
all the lands between the 40th and 48th degrees of north latitude. 

" Under thi3 patent New England hag been, in a great measure, 



60 

settled. The company conveyed to Henry Rosewell and others, ia 
1627, that territory wliich is now Massachusetts; and in 1628, a char- 
ter of incorporation, comprehending the powers of government, was 
granted to the purchasers. 

*' Great part of New England was granted by this company, which 
at h:^ngth, divided their remaining lands among themselves, and in 
1635 surrendered their charter to the Crown. A patent was granted 
to Georges for Maine, which was allotted to him in the division of 
prof.erty. 

" All the grants made by the Plymouth Company, so far as we 
can It-arn, have been respected. In pursuance of the same principle, 
the King, in 1664, granted to the Duke of York the country of New 
England, as far south as the Delaware bay. His Royal Highness 
transferred New Jersey to Lord B>Mkely and Sir George Carteret. 

"In 1663 the Crown granted to Lord Clarendon and others the 
country lying between the 36th degree of north latitude and the river 
St. Mathes; and in 1666 the proprietors obtained from the Crown a 
new charter, granting to them that province in the King's dominions 
in North America which lies from 36 degrees 30 minutes north lati- 
tude, to the 29th degree, and from the Atlantic ocean to the South 
sea. 

" Thus has our whole country been granted by the Crown while in 
the occupation of the Indians. These grants purport to convey the 
soil, as well as the right of dominion, to the grantees. In those gov- 
ernments which were denominated royal, where the right to the soil 
was not vested in individuals, but remained in the Crown, or was 
vested iti the colonial government, the King claimed and exercised 
the right of granting lands, and of dismembering the government at 
his will. The grants made out of the two original colonies after the 
resumption of their charters by the Crown, are examples of this. 
The governments of New England, New York, New Jersey, Pennsyl- 
vania, Maryland, and a part of Carolina, were thus created. In all 
of them, the soil, at the time the grants were made, was occupied by 
the Indians; yet almost every title within those governments is de- 
pendent on these grants. In some instances the soil was conveyed 
by the Crown unaccompanied by the powers of government, as in the 
case of the northern neck of Virginia. It has never been objected to 
this, or any other similar grant, that the title, as well as possession, 
was in the Indians when it wa§ made, and that it passed nothing on 
that account. 



61 

^' Thus, all the nations of Europe who have acquired territory on 
this continent, have asserted in themselves, and have recognised in 
others, the exclusive right of the discoverer to appropriate the lands 
occupied by the Indians. Have the American States rejected or 
adopted this princi[)lf ? 

" By the treaty wiiich concluded tlie war of our revolution. Great 
Britain relinquished all claim, not only to the government, but to 
the ' pro[)rietary and territorial rights of the United States,' wdiose 
boundaries were fixed in the second article. By this treaty, the poio- 
ers of government, and the right to soil, which had previously been 
in Great Britain, passec? definitely to these States. We had before 
taken possession of them, by declaring independence; but neither 
the declaration of independence, nor the treaty confirming it could 
give us more than that which we before possessed, or to which Great 
Britain was before entitled. 

"It has never been doubted that either the United States or the 
several States had a clear title to all the lands within the boundary- 
lines described in the treaty, subject only to the Indian right of oc- 
cupancy; and that the exclusive power to extinguish that right was 
vested in that Government which might constitutionally exercise it. 

" Virginia, particularly, loithin lohose chartered limits the land in 
controversy lay, passed an act, 1779, declaring her ' exclusive right 
of pre-emption from the Indians, of all the lands within the limits of 
her own chartered territory, and that no person or persons whatsoever 
have, or ever had, a right to purchase any lands within the same, 
from any Indian nation, except only persons duly authorized to make 
such purchase — formerly, for the uso and benefit of the colony; and 
lately, for the commonwealth. The act then proceeds to annul all 
deeds made by Indians to individuals, for the private use of the pur- 
chasers. 

"Without ascribing to this act the power of annulling vested 
rights, or admitting it to countervail the t-^stimony furnished by the 
marginal note opposite to the title of the law, forbidding purchases 
from the Indians, in the revisals of the Virginia statutes stating that 
law to be repealed, it may safely be considered as an unequivocal 
affirmance, on tiie part of Virginia, of the broad principle which had 
always been maintained — that the exclusive right to purchase from 
the Indians resided in the Government. 

"In pursuance of the same idea, Virginia proceeded, at the same 
session, to open her laud office for the sale of that country which now 



62 

constitutes Kentucky — a country, every acre of which was then 
clrtiiued and possessed by Indians, who maintained their title with as 
much persevering courage as was ever manifested by any people. 

"The States having within their chartered limits different portions 
of territory recovered by Indians, ceded that territory generally to the 
United States, on conditions expressed in th^ir deeds of cession, 
which demonstrate the opinion that they ceded the soil as well as 
Jurisdiction, and that, in doing so, they granted- a productive fund to 
the Government of the Union. The lands in controversy lay loithin 
the chartered limits of Virginia, and were ceded loith the whole 
country riorthioest of the river Ohio. This grant contained reserva- 
tions and sti[>uiations, which coidd only he made by the owners of the 
soil; and concluded with astipulation that 'all the lands in the ceded 
territory, not reserved, should be considered as a common fund, for 
the use and benefit of such of the United States as have become, or 
shall become, members of the confederation,' &c., 'according to their 
usual respective proportions in the general charge and expenditure, 
and shall be faithfully and bona fide disposed of for that purpose, and 
for no other use or purpose whatsoever.' 

" The ceded territory was occupied by numerous and warlike tribes 
of Indians ; but the exclusive right of the United States to ex- 
tinguish their title, and to grant the soil, has never, we believe, been 
doubted. 

'' The United States, then, have unequivocally acceded to that 
great and broad rule by which ifs civilized inhabitants now hold this 
country. They hold, and assert in themselves, the title by which it 
was acquired. They maintain, as all others have maintained, that 
discovery gave an exclusive right to extinguish the Indian title of 
occupancy, either by purchase or by conquest ; and gave, also, a right 
to such a degree of sovereignty as the circumstances of the people 
would allow them to exercise, 

" The power now possessed by the Government of the United 
States to grant lands, resided, while we were colonies, in the Crown, 
or its grantees. The validity of the titles giveii by either has never 
been questioned in our courts. It has been exercised uniformly over 
territory in possession of the Indians. The existence of this power 
must negative the existence of any right which may conflict with and 
control it. An absolute title to lands cannot exist, at the same time, 
in different persons, or in different governments, An absolute, must 
be ari exclusive title-=^or at least a title which gj^cludes all others not 



63 

compatible with it. All our institutions recognise the absolute title 
of the Crown, subject only to the Indian right of occupancy, and re- 
cognise the absolute title of the Crown to extinguish that right. This 
is incompatible with an absolute and complete title in the Indians. 

"However extravagant the pretension of converting the discovery 
of an inhabited country into conquest may appear — if the principle 
has been asserted in the first instance, and afterwards sustained ; if a 
country has been acquired and held under it ; if the property of the 
great mass of the community originates in it — it becomes the law of 
the land, and cannot be questioned. So, too, with respect to the 
concomitant principle, that the Indian inhabitants are to be considered 
nu'rely as occupants — to be protected, indeed, while in peace, in the 
possession of th^ir lands, but to be deemed incapable of transferring 
the absolute title to others. However this restriction may be opposed 
to natural right, and to the usages of civilized nations, yet, if it 
be indispensable to that system under which the country has bsen 
settled, and be adapted to the actual condition of the two people, it 
may, perhaps, be supported by reason, and certainly cannot be rejected 
by courts of justice. 

" This question is not entirely new in this court. The case of 
Fletcher vs. Feck grew out of a sale made by the tState of Georgia of 
a large tract of country within the limits of that State, the grant of 
which was afterwards resumed. The action was brought by a suh- 
puichaser on the contract of sale ; and one of the covenants in the 
deed was, that the State of Greorgia, at the time of sale, was seized 
in fee of the premises. The real question presented by the issue was, 
whether the seizin in fee was in the State of Georgia or in the United 
States. After stating that this controversy between the several States 
and the United States had been compromised, the court thought it 
necessary to notice the Indian title, which, although entitled to the 
respect of all courts until it should be legitimately extinguished, was 
declared not to be such as to be absolutely repugnant to a seizin in 
fee on the part of the State. 

" This opinion conforms precisely to the principle which has been 
supposed to be recognised by all European governments, from the first 
settlement of America. The absolute, ultimate title has been con- 
sidered as acquired by discovery, subject only to the Indian title of 
occupancy, which title the discoverers possessed the exclusive right of 
acquiring. Such a right is no more incompatible with a seizin in fee, 
than a lease for years, and might as effectually bar an ejectment. 



64 

" Another view has been taken of this question, which deserves to 
be considered. The title of the Crown, whatever it might be, could 
be acquired only by a conveyance from the Oroiun. If an individual 
might extinguish the Indian title for his own benefit — or, in other 
words, might purchase it — still he could acquire only that title. Ad- 
mitting their power to change their laws or usages so far as to allow an 
individual to separate a portion of their lands from the common stock, 
and hold it in severalty, still it is a part of their territory, and is 
held under ihem, by a title dependent on their laws. The grant de- 
rives its efficacy from their will ; and if they choose to resume it, and 
make a different disposition of the land, the courts of the United 
States cannot interpose for the protection of the title. The person 
who purchases lands from the Indians, within their territory, incorpo- 
rates himself with them, so far as respects the property purchased ; 
holds their title, under their protection, and subject to their laws. If 
they annul the grant, we know of no tribunal which can revise and 
set aside the proceeding. We know of no principle which can dis- 
tinguish this case from a grant made to a native Indian, authorizing 
him to hold a particular tract of land in severalty. 

" The proclamation issued by the King of Great Britain in 1763, 
has been considered, and we think with r-^ason, as constituting an ad- 
ditional objection to the title of the plaintiffs. 

" By that proclamation, the Crown reserved under its own domin- 
ion and protection, for the use of the Indians, 'all the land and ter- 
ritories lying to the westward of the sourct^s of the rivers which fall 
into the sea from the west and northwest,' and strictly forbade all 
Biitish subjects from making any puichases or settlemynts whatever, 
or taking possession of the reserved lands. 

"It has never been contended that the Indian title amounted to 
nothing. Their right of possession has never been questioned. The 
claim of Government extends to the complete ultimate title, charged 
with this rigid of possession, and to the exclusive power of acquiring 
that right." 

After such an array of facts and authorities in favor of the claims 
of Virginia to all the territory which she either ceded to the Uinted 
States, or reserved to herself, we may pronounce the points mooted 
by Mr. Hall, as '■^ coram non judice," and therefore, that the verdict 
of the committee on that account, and for other reasons, '■^ non con- 
stat." 

Mr. Hall, in the conclusion of his argument, iu that portion of the 



65 

report which we have reviewed, not content with advancing what 
we have ah-eady considered, proceeds emphatically to exi)ress an opin- 
ion no less extraordinary than those we have just noticed. Notwith- 
standing our unwillingness to dwell on this subject, yet we would 
consider that we had imperfectly discharged our duty, were we to omit 
placing this assertion of his also in its proper light before the country. 
But, in undertaking to do that, we propose to be as concise as tho 
nature of the allegation would admit, and we hope, after having re- 
riloved his more elaborate and learned objections against satisfying the 
outstanding revolutionary land bounty warrants, we shall be able to 
despatch his minor difficulties, equally as satisfactorily, and with 
more brevity. 

In report No. 1063, page 62, we find the following : "On the con- 
trary, it very clearly appears to the committee that the tith of Vir- 
ginia to the land ceded by her, as well as to a large portion of the 
lands retained and reserved by her, was of an extremely doubtful, not 
to say of a very flimsy character; and that the cession, when made, 
was as much for her own interest and benefit, as for the interest and 
benefit of the United States." 

Mr. Hall thus concludes that learned portion of his speculations 
about the boundaries, chartered rights, and claims of Virginia to the 
western territory, Avliich, at the- ins^tance of this Government, she 
ceded on certain conditions to the United States. He roundly asserts 
that " the cession, when made, was as much for her own interest and 
benefit, as for the interest and benefit of the United States;" and. 
this inference he rests upon the assumption that "the title of Vir- 
ginia to the land ceded by her, as well as to a large portion of the 
land retained and reserved by her, was of an extremely duubffu!, not 
to say of a very flimsy character." But as we have, in tlie introduc- 
tory part of this report, conclusively established the right and title of 
Virginia to all the lands contained in her ancient chartered limits 
with (he restrictions mentioned in her constitution, adopted the 29th 
of June, 1776, wherein her boundaries are clearly setfurtli; we, there- 
fore, deem it amply sufficient to remark, in this place, that, inasmuch 
as the foundation on which this inference of Mr. Hall rested was al- 
togetlier illusory and fanciful, his conclusion must necessarily be im- 
potent and worthless. 

In connexion with this view of the subject, we propose cursorily to 
examine the amount of gross revenue which this Government has de- 
rived from the several portions of territory ceded by the different 



66 

States to ths Federal Government. The disposition manifested in the 
reports under review to disparage, both by every variety of argument 
and by insinuation, the just claims of Virginia, and thereby to impair 
the desire hwretofore manifested by this Grovernment to consider them 
favorably, impels us, in reply, to touch upon a topic which a sense of 
propriety, if no otlier reason could be found, should have dissuaded 
Mr. Hall from so elaborately arguing in his report. No ignoble de- 
sire of drawing invidious comparisons, nor of dis[)araging either or 
any of the States of this Union, or in any way to question tiie cours?fi 
of policy which the Federal Government has deemed it proper to pur- 
sue in relation to this subject, has influenced our conduct on this oc- 
casion. On the contrary, we hold it in as bad taste to magnify the 
liberality of States as of individuals; and with equal justice it is 
maintained, that wantonly to disparage either, is equally repugnant 
to every consideration of propriety. 

While the data presented for our consideration are not altogether 
definite as regards the precise amount derived from the sales of lands 
which each particular State may have ceded ; yet in some instances 
they are so, and in others, when viewed in conjunction with what is 
usually admitted to have been the district respectively ceded by each 
State, we can arrive at an approximation sutiiciently near the exact 
j)oint to enable the House of Representatives to draw such deductions 
as we think will heighten rather than diminish the disposition hereto- 
fore manifested to pay in full all the remaining land bounty claims. 
This laudable policy of satisfying these old revolutionary debts, we 
humbly conceive will be yet farther promoted by contrasting the fore- 
going with the various returns or donations in land which Congress 
was required, or has seen fit, to accord to particular States since ac- 
cepting the deeds of cession. 

By reference to the various deeds of cession, it will be found that 
some of them contained special reservations in favor of the States 
granting the lands, while others did not. It is not matei'ial to our 
pui-pose to inquire into the reasons which induced some of the States 
to make those reservations, as it is sufficient simply to state the fact, 
and the extent and character of those reservations. 

Virginia, in her deed, required her expenses in subduing and de- 
fending the ceded territory to be reimbursed; that 150,000 acres of 
land should be allowed and granted to Clarke's regiment; that in case 
of there being a deficiency of good lands on the southeast side of the 
Ohio to satisfy the land bounties due the troops of her continental line. 



C7 

it should be made up of good lands on the northwest side of the 

Ohio, between the Scioto and Little Miami rivers. 

For the last-mentioned purpose, the troops of the 
continental line have located warrants in Ohio to 
the extent of - - - 3,550,000 acres. 

And Congress has ajjpropriated in land scrip, at dif- 
ferent times, to satisfy the troops of the State and 
Continental lines, and the State navy, - 1,460,000 acre.s. 



5,010,000 acres. 
Military lands reserved for Clarke's regiment, - 150,000 " 



Total, 5.160,000 acres. 

Connecticut made her deed of cession on September 14, 1786. She 
then ceded her claims to the territory lying between the 4lst and 42d 
degrees of north latitude, and west of a line 120 miles west of the 
western boundary of Pennsylvania. She '^reserved a tract of land on 
Lake Erie, bounded on the south by the 41st degree of north latitude, 
and extending westwardly 120 miles from the western boundary of 
tho State of Pennsylvania. The cession of Massachusetts and New 
York included an insulated tract, commonly called 'the triangle,' 
lying on lake Erie, west of the State of New York, and north of that 
of Pennsylvania; and which has since been sold by the United States 
to Pennsylvania. 

" North Carolina ceded to the United States all her vacant lands 
beyond the Allegany chain of mountains, within the breadth of her 
charter; that is to say, between 35° and 36° 30' of north latitude, the 
last parallel being the southern boundary of the States of Virginia 
and Kentucky. That territory which now forms the State of Ten- 
nessee was, hovirever, subject to a great variety of claims described in 
the act of cession; and Congress has, by the act of April 18, 1806, 
ceded to the last-mentioned State the claim of the United States to 
all the lands east of a line described in the act, leaving the lands 
west of that line still liable lo satisfy such of the claims secured by 
the cession from North Carolina as cannot be located in the eastern 
division." 

"South Carolina and Greorgia were the only States which had any 
claim to the land lying south of the 35th degree of north latitude. 
By tlie cessions from those two Shites, the United States have ac- 
quired the title of both to the tract of puiuitry exto.nUing fi'om the 



68 

31st to the 3.5th degree of latitiUle, and bounded on the west by the 
Mississippi, and on the east by the river Chatahooche, and by a line 
drawn from a place on that river, near the mouth of Uchee creek, to 
Nickajack, on the river Tennessee." As a condition of the cession 
from Greorgia, the Indian title to the lands within her present bounda- 
ries was to be extingished at the expense of the United States, and she 
was also to receive 1,250,000 dolhirs out of the proceeds of the first 
sales of lands in the ceded territory, — 1 vol. Laws U. S. pp. 452 
and 453. 

It is plainly seen, from the foregoing, that the deeds of Virginia, 
North Carolina, Georgia, and Connecticut, contained large and spe- 
cial reservations in favor of those States, and that the deeds of the 
remaining States did not. The history of the times seems clearly to 
establish that it was the aim and policy of those States ceding their 
territory, that all of the good and valid claims of the citizens of either 
of those States to portions of the ceded territory sJiould be properly 
and adequately guarded and protected. 

Certainly it would have been a most singular transaction for those 
States, placed under legislative obligations to their citizens, not (^nly 
to disregard such a stale ot facts, but to divest themselves of the 
ability to redeem these solemn promises whenever they should be de- 
manded. Such a course would have been contrary to justice and com- 
mon sense. Virginia, in ceding her territory, was not only mindful of 
this consideration, but thought she had made the most ample provi- 
sion to guard against all contingencies. 

Her continental line is especially provided for in the deed. Have 
all those claims been liquidated.^ We answer in the negative. Then 
should they be paid ? We answer, that all bona fide claims against 
the Government should be paid. 

Have all of lier other debts incurred in prosecuting the war of the 
Revolution been paid .^ Again we answer in the negative; for there 
are yet outstanding land bounty claims due her State line and navy, 
And those troops participated as fully, as freely, and as successfully 
in that great struggle for independence as those of the continental 
line. Their claims are deemed equally meritorious, and they are 
doubtless embraced within the scope and intention of the act of Con- 
gress of 17D0, which purported to assume the debts of the Revolution, 
But we will for the present waive urging this point, and proceed with 
our comparative statements. 

lu th(» annexed tabular statement from Colonsl 'J'homas H. Blake, 



69 

Commissioner of the Geueral Land Office of the United States, a full 
and comprehensive exhibit is made — first, of the entire area or num- 
ber of acres cedud by the different States; secondly, of the gross pro- 
ceeds of the sales of the public lands ceded to this Government by 
each respective State; thirdly, the number of acres yet unsold; 
and, fourthly, the amount in money which it has cost this Gov- 
ernment to extinguish the Indian titles to the various portions 
of territory ceded by each State. Also, in the explanatory notes, we 
find stated the several reservations or payments to particular States, 
as well as amounts paid to extinguish Indian titles in some of the 
States ceding their w'estern territory. Before adverting more partic- 
ularly to this table, we will simply recall to mind what has been 
established in the preceding part of this report, viz : that Virginia 
rightfully claimed, not only up to the 41st degree of north latitude, 
from the western boundary of Pennsylvania, but that, by the treaty 
made in 1763 by Great Britain with France, in consequence of Vir- 
ginia having involved Great Britain in a war with that power, by vin- 
dicating her right of soil, which Francn had encroached upon, Vir- 
ginia then had her northern limits extended out to the lakes. But as 
it is not our purpose to do more than to disprove the imputations of 
Mr. Hall, that "the cession, when made, was as much for her own in- 
terest and benefit as for the interest and benefit of the United States," 
we will, in our efibrts to accomplish this purpose, not aim, therefore, 
to show the highest possible results which Virginia might lay claim 
to, but content ourselves with keeping within a limit which, it is be- 
lieved, few (if any) will question as being legitimate, after examining 
what has been advanced in support of the right and title of Virginia 
to all the territory which she ceded to this Government. The charter 
of Connecticut, it has been shown, proh-ibited her from coming south 
of the 41st degree of north latitude, and Virginia claimed up to the 
41st degree. So, therefore, as we have shown heretofore, that neither 
Connecticut nor any northern colony could, under their charters, claim 
below the 4lst degree of north latitude, all the territory south of that 
parallel to the North Carolina line being included within the limits 
of Virginia, clearly belonged to her. On this account, and for the 
reasons above stated, we will only extend our estimates and compara- 
tive statements, so far as Virginia at present is interested, to the 
ceded territory lying south of the 41st degree of north latitude; and 
with our base thus restricted, we think it can be conclusively shown 
that the rcuerse of what Mr, Jlall declares is true, Adopting the 



70 

41st degree north latitude as our uothern limit, in making this com- 
parative statement, it will be found, by an inspection of the map of 
the United States, that about four-fifths of the entire area of Ohio, 
Indiana, and Illinois, is situated south of that parallel. Then we 
have but to take four-fifths under the several heads in the annexed 
table referring to those States, and we obtain the data for our calcu- 
lation, which, having been carefully made out, we also append, in 
order that we may the more satisfactorily present our views. In ad- 
dition, we jDropose to present a statement of the various valuable con- 
siderations, reserved, or received, by several of the States, from this 
Government, since making their deeds of cession. 

General Land Office, 

April 12, 1844. 

Sir : In accordance with your request, I enclose herewith a state- 
ment showing the area of the territory ceded to the Federal Govern- 
ment by Virginia, New York, Massachusetts, Connecticut, North 
Carolina and Georgia ; the gross amount of money received by this 
Government on account of sales from that territory ; the number of 
acres remaining unsold ; and the amount in money, goods, &c., which 
it has cost the Government to extinguish the Indian title to those 
lands. 

I have the honor to be, very respectfully, your obedient servant, 

THO. H. BLAKE, Commissioner. 

Hon. E. W. Hubard, 

House of Representatives. 

[The concluding portion of report omitted.] 



71 



COPIED FROM THE BRITISH ARCHIVES. 



Colo, Vol 6, No. 59. } Considerations, &c., 20 Jimo, 1632. 

Considerations upon the patent to the Lord Baltimore, dated 20 
June, 1632. 

Blatter of Laiue. 

1. Because the matter of the peticiou of the patentee mentioned to 
be the motive and the cause of the grant, is (viz.) that the region 
thereby granted was then unhabited and possessed of the barbarous 
heathen or savages. 

Is not so, for in truth part of the said region had bin formerly in- 
habited by his majesties subjects which were sent over from the Lon- 
don colony of Virginia. 

2. There is intended to be granted the libertyes of a county palan- 
tine, and there is no exception of writts of error, or of the last ap- 
peale to the king, as by law ought to be. 

3. Habend pront aliqnis epus dundraensis infra et unquam autchac 
habuit vel habere potuit, which I think is to generall and incertaine, 
because it doth not name any one certaine Bishop of Durham, to 
whom it may referr; and the county palantine of Durham was al- 
tered 27 Hen. 8 c. 24. That the justices must bee made in the king's 
name and by his authority. 

4. By the patent of 10 April, 4 Jac. the kingdoeth grant and agree 
that Sir Thomas Gates, &c., and all such others as are and shall be 
joined to them of that colony shall begin their first plantation where 
they think fitt, between the 34 and 41 degrees of the said latitude, 
and have 50 miles from the place of their first plantation all alongst 
the sea-coasts, together with all the islands within an hundred mile; 
and an 100 mile to the land, and none permitted to inhabitt or plant 
on the back of the colony fol. 4 and 5. 

5. By the Lord Baltimore's patent this election is taken away and 
part granted to him, viz.: from Watking Point south, which is iu 
the 38 degrees of latitude to Lawares Bay north, which is iu the 41 
degree of latitude or thereabouts. 



72 



ACCOMACK C. H., Va. 

Mar. 22d, 1871. 
Dear Sir : 

The enclosed copies were made and forwarded to you by direction 
of Mr. GiUet. 

Very reept., 

M. OLDHAM, Jr., D. C. 
To Gc.'n'l Henry A. Wise 



RICHMOND, May 17tb, 1871. 

I have read and carefully compared the following pages with the 
copy of the Record of the clerk's office of the court of the county of 
Accomack, furnished by the clerk of said county, and can vouch for 
their being a correct transcript. 

C. E. SNODQRASS. 



73 



SCARBURGH REPORT. 



To ye Hon'ble Gov'nr and Oounsell of Virginia, Edm. Scarburgh 
humbly presenteth ye account of proceedings in his Majis. affaires 
at Anamessecks and Manoakin on ye Eastern Shoare of Virginia : 

Accompanied w'th Coll. Stringer, foure of ye comission, and about 
fourty horsemen, whom I tooke w'th me for pomp and safety, and to 
repell yt contempt w'ch I was informed some Quakers and a foole in 
office had threatened to obtrude, wee came to Aname&secks on Sunday 
night, being ye 11th of October last past. On Monday morning, at 
ye house of Stephen Horssy, an officer of ye Lord Baltimore, I 
began to publish ye comauds of ye assembly, and for yt ye officer 
could not read. I often read ye act unto him, who made me noe reply, 
but brought a pattent in stead of his comission, and tould us their 
was his authority, and yt hee was put in trust by ye lord leift. of 
Maryland, and he would not be false to his trust w'th more like that. 

Hee was answered that their could be noe trust where there was no 
interest, that it was evident by ye Lord Baltimore's bounds he had 
noe lands to ye Southward of Watkins point, and yt that question 
was determined by a power beyond private men's controverting. 
Wherefore all that was required of him was, that he would please to 
subscribe his obedience to his majis. according to ye act of assembly, 
and peaceably enjoy his lands, goods, &ct., which his majis gov'nor 
would protect as his ma'ties subjects. But if he refused to conforme 
his obedience, I should arrest him to answer before his majis gov'nor 
for his contempt and rebellion. At this ye said officer, something 
startled, and said, put case, I doe underwrite my obedience and many 
more. The gov'nor of Maryland will come so soone as you are gone 
and hang me and them at o'r doores. It was answered him, that hee 
thought to unworthely of ye lord leift., and yt it was a tiranny not 
imaginable to be done. The officer answered, such things has bin 
done in Maryland, and therefore I dare not subscribe. Then haveing 
spent much time, and consulting w'th our military and civil officers. 



74 

it was resolved as ye best expedient to arrest him, aud take some of 
o'rselves for security for his appearance before ye hon'ble gov'nor and 
counsel!, and sett ye broad arrow on ye doore. So thus proceeding 
wee went to ye house of Ambrose Dixon, a Quaker, where a boat aud 
men, belonging to Gropmes Shipp, and two running Quakers were, 
also George Johnson and Thomas Price, inhabitants and Quakers. 
Their publishing he act of assembly w'th a becoming reverence, w'ch 
ye Quakers scoft and dispissed, George Johnson, filled w'th ye 
spirit of nonsence, talked till hee forgot w't hee said, and speak- 
ing much from ye purpose, I thought not my part to spend 
time as he did. But briefly demanding their obedience, and they 
all refusing, I proceeded to arrest them to appeare before ye hon'ble 
gov'nor and councell to answer their contempt and rebellion, offering 
to take one ye other as securities for their appearance. But they 
refusing, I sett ye broad arrow on the doore, and so marched of to 
Henry Boston's, where publishing ye act hee desired consideration a 
day or two, and then hee would attend, so wee departed thence to 
Manoakin, where I sent sumons for all ye housekeepers and freemen 
to appear, who coming in most willing and cheerfully they all sub- 
scribed except Mr, John Elzey and Capt. William Thorne, who being 
officers for ye lord Baltimore desired respite of time, untill they could 
returne their commissions w'ch they engaged their words and reputa- 
tion to performe so soon as possible. Their I held his ma'jis court of 
survey and had ye assistance of ye coraissions therein. 

Then all the people made entries of their lands and acknowledge- 
ments of conveyances, &c., of lands, they all desiring ye Hon. the 
govno'r of Virginia's protection, as his ma'jis subject, which wee did 
assure them of, so farr as was in o'r powers. They also complained 
of a late invasion from ye Indians, and great danger of being cutt of, 
and said they sent to Maryland to ye lord left for aid, who after about 
fourteen dales delay had a letter of advise to stand on their owne 
guard, ffor they had more than enough to doe in Maryland soe that 
these people said they were owned for profit, and deserted in distress. 

That if a report of Col'l Scarburgh's coming w'th troops of horse 
had not prevented together with a sloop of his full of armed men 
seeking runaways had not hapened therein y't juncture of time to ye 
terror of Indian, they had undoubtedly bin cutt of therefore desired 
course to be taken therein, w'ch, accordingly was done. They fur- 
ther desired y't in regarde of ye remotnes of officers, and ye inter- 
mixed neighborhood of Quakers, and ye confusion they did and might 



75 

produce, that officers might be ther appointed, vv'ch they were also 
assured to expect so soon as I could give ye Hon'ble gov'nor and 
councell account of the affairs; some of them also discoursed of ye 
Lord Left of Maryland's claime to Manokin and all ye other places 
Anancock, to which it was answered that whilst ye euonius proclam- 
ation was uncontroled. That declares Anancock to be Maryland's 
Southern bounds it might be so received. But since occasion made 
ye gov'ment of Virginia not only reverse that proclamation. But 
also by this present act of Assembly ye certaine bounds of ye Lord 
Baltimore's pattent was declared, aad that of ye Lord Left had ought 
to say, hfie was referred by ye act to persons and place. 

Therefore, they need not trouble themselves therein, ffor ye question 
apertained to higher powers and above private men's controverting 
at w'ch tht'y were well satisfied and desired protection of their per- 
sons and estates from any pretenders under ye s'd lord, w'ch being 
assured them, they departed well satisfied. At that time one Hollins- 
worth, marchant, of a Northern vessell, came and presented his request 
for liberty of trade, w'ch I doubted was some plott of ye Quakers, 
and yt it was their hopes to interrupt ye compliance of those at Ma- 
noakin by imagining I would demand customs and other charge upon 
w'ch hee should take occasion to depart, and then ye Quakers to 
upbraid ye obedient w'th this lost trade by reason of impositions, and 
therefore urdge them to recede in tyme, but to defeat their designe, 
I presumed in their infant plantation to give ffreedom of trade w'thout 
impossitions, w'ch when ye peple perceived, some said ye Quakers 
were lyers, ffor they had prophesied, otherwise I hope this will not 
be ill taken if the tyme, place and occasion be considered, it may be 
otherwise ordered hereafter when it shall be thought fitt. Then came 
Stephen Horssy and Henry Boston, who appeared according to pro- 
mise, and ye said Horssy pretended hee would visit us next morning, 
and pass upon ye same resolves, as Mr. Elzey and Capt. Elcorn had 
done, that was to lay downe his commission and then subscribe his 
conformity. But hee never saw us more, and as wee are informed, 
carried away Boston w'th him, and advised others to rebellion, and to 
this day w'th ye Quakers bids defiance to ye gov'm't of his majis. 
country of Virginia, boasting their insolences and forgeries. 

The number and quallification of this rout I shall recount. Stephen 
Horssy, ye ignorant j'et insolent officer, a cooper by proffession, who 
lived long in ye lower parts of Accomack, once elected a burgess by 
ye comon crowd, and thrown out by ye assembly for a factious and 



76 

tumultuous person, a man repugnant to all gov'mt of all sects, yet 
professedly none, constant in nothing but opossing church gov'm't, his 
children at great ages yet uncristned. That left ye lower parts to 
head rebellion at Anamessecks, where hee now liveth, and stands ar- 
rested, bat bids defiance untill by stricter order delt w'th. 

George Johnson, ye proteus of heres}^, who hath bin often wandering 
in this county, where hee is notorious for shiffting scismattical pranks, 
at length pitched at Anamessecks, where hee hath bin this yeare and 
made a plantation ; aknowne drunkard, and reported by ye neighbors 
to be ye father of his negro wenches bastards, suspected to be made 
away privately and w'th stands gov'm't for feare of justice, hee now 
professeth quaking and to instruct others, who is himself to learn good 
manners, calling ye obedient subjects villians, rogues and forsworne 
persons for their subscribing, stands arrested to appear before ye 
hon'ble gov'nor, and bids defiance untill stricted course be taken. 

Thomas Price, a creeping Quaker, by trade a leather dresser, whose 
conscience wouid not serve to dwell amongst ye wicked, and therefore 
retired to Anamessecks, where he hears much and saith nothins: els, 
but y't hee would not obey gov'nt, for w'ch he also stands arrested. 

Ambrose Dixon, a caulker by profession, that lived long in ye lower 
parts, was often in question for his quaking piofession, removed to 
Anamessecks, there to act what hee could not be here permitted, is a 
prater of nonsenc?', and much led by ye spirit of ignorance for w'ch 
he is followed. A receiver of many Quakers, his house ye place of 
their resort, and a conveyor of o'r ingaged persons out of ye county, 
averse to gov'nt, for which hee stands arrested and ye broad arrow on 
his doore, but bids defiance until severer course reforme him. 

Henry Boston, an unmanerly fellow, y't stands condemned on o'r 
records for slighting and condemning ye laws of ye county, a rebell 
to gover'nt and disobedient to authority, for w'ch he received a late 
reward w'th a rattan and hath not subscribed, hid himself and so es- 
caped arrest. 

These are all, except two or three, loose fellows, y't follow ye Quak- 
ers for scrapps, whome a good whipp is fittest to reforme. 

Some days since ye people of Manoakin and ye parts adjoining, 
made request to ye court for means of safety, in respect y't several 
strange speaches were spread by ye Quakers, and their adherents, 
whereupon the court of Accomack made ye following order : 

At a court held in Accomack county, ye 10 day of November, by 



77 

his Maj'es justices of ye peace ibr ye s'd county, &c.; and in yo yeare 
of our Lord God, 1663. 

Present— Capt. Geo. Parker, Major Jno. Eilmy, Mr. Juo. West, 
Mr. Edw. Bowman, Mr. D<^vor. Browne, Mr. Hugh Yeo, Mr. Jno. 
Wisse. 

Whereas his Maj'es good suhjects inhabiting Manoakin and other 
remote parts of this country, having hitely conformed their obedience 
by subscription to ye act of Assembly, w'ch ye Quakers and some 
other factious people for their owne ends have refused, and doe per- 
sist in that rebellion, and reporting as from the Lord Leift of Mary- 
land, many mutinous and factious speeches, tending to breach of 
peact^, disturbance of ye people's quiet in those parts, which wee 
rathi-r believe to arise from their own inventions. Then so Hon'ble 
a person as ye Lord Leitt of Maryland, nevertheless, to prevent ye 
designs of those people Quakers whome his Majis hath declared to 
endeavour the subversion of gov'nt, and to secure those good subjects, 
who by their requests have sought this court for means of protection. 
The court have thereupon ordered that untill his Maji's gov'nt can be 
fully informed of this atftiir and provide a fitter expedient, that Capt. 
Wm. Thorne, an officer under Coll. Scarburgh, Mr. Randall Revell, 
Mr. Wm. Bosman and Mr. Jno. Rhodes, all or any of them be qual- 
lified w'th sufficient authority to call together and comaud all his 
Maj'is's good subjects at Manoakin and all other parts of this county 
so farr as Pokomoke river to come together and arme themselves 
only for defence against any person or p'sons y't shall invade them, to 
the disturbance of ye people or their estates, and breach of his Maj'is's 
peace, w'ch to conserne the court hath taken this case and course and 
y't it may appear absolute necessary, wee have annexed ye rumors 
that ye Quakers and factious fooles have spread to ye disturbance of 
ye peace and teror of ye less knowing, w'ch we are assured doth arise 
from ye Quakers, more than ye Lord Leift of Maryland, or any other 
civill or ingenious person; and y't ye wicked plott and contrivance of 
ye said Quakers and factious fools may be prevented, have taken this 
course for ye safety of his Maji's good subject. 

Some of ye reports are these : 

That ye Lord Leift. of Maryland vvill hang all those his ma'jis sub- 
jects that have subscribed their obedience to his ma'jis govm't of Vir- 
ginia. 

That ye govu'r of Virginia, for medling, hath a peace of green wax 
sent for him. 



78 

That one Jolly intends to settle at Pocomoke river on some of ye 
people's lands of this county and to hold it vi et armis. 

That Coll. Scarburgh, for executing ye gov'nor of Virginia and grand 
assembly's comands deserves to be hanged, and more stuff like this. 

This is ye full account of ye proceedings to this day, as concerning ye 
performance of ye grand assembly's comands, and ye consequences 
thereof, it resteth w'th your honors to direct w't farther course is to be 
taken. I writt toyeLordLeift. of Maryland and sent ye copyof yeact, to 
w'ch I added my readiness to attend w'th Mr. Cathel and Mr. Laurance 
if his hon'r did desire it, but have received noe other answer but a ca- 
pitulatory letter, w'ch I have sent herew'th, presumeing ye lord leift. 
has personated his afaires w'th ye hon'ble govn'or at Jamestown; 
though I suppose, according to ye act of assembly, there ought to 
have bin a meeting on ye Eastern shore, w'ch ye Quakers say is con- 
temned. Whatever ray own person may bee, I presume ye officer I 
present is not so unworthy, nor w. persons of those joynee w'th me; 
nor when they come to try all shall they find y't affair negotiated w'th 
less repute than becomes such a concerne. Were only now expert 
either some particular orders or leav^^ it to ye court of Accomack to 
proceed as occasion shall serve for ye peace and safety of his majis 
subjects. I suppose ye lawes of o'r country put in execution will 
order ye Quakers, whose interest will never permit their consciences to 
comply w'th y't govm't w'ch is inconsistent w'th their affairs. There- 
fore strictest course might be taken, and if comanded, though they 
are not free to come, they shall be brought before yo'r hon'rs by yo'r 
most humble servant. 

EDM. SCARBURGH. 

Capt. William Jones, justice of peace and quorum in his majis 
county of North'ton, Virginia, doth declare on oath, y't about thirty- 
five or thirty-six years since hee did ofiften_ sale a trading w'th ye In- 
dians in ye bay of Chessepiack, and well knew ye river Pokomoke, 
w'ch lyeth to ye Southward of a little point described in Capt. 
Smith's Mapp w'thout a name, and is so far Southward as a man can 
see from ye place described in Capt. Smith's Mapp for Watkins point; 
and doth affirm y't ye said river of Pokomoke was then soe called, 
and noe such name as ye river Wighco, either at y't tyme or in ye 
memory of man before, was applyed to ye river of Pokomoke, and y't 
ever since ye said river, soe sciturted as aforesaid, hath bin and is 
called by ye name of Pocomoke river. And farthermore this depo- 



79 

nent saith, y't in the time bee was a married man and a trader in y't 
bay of Chessepeak, John Nutwell was a boy and servant to Hugh 
Hayes, and was run away from his said master, and this deponent 
gave a hoe to ye Indians for ye said Nutwell, and brought him home 
again, well straped w'th ye liallyards. Soe fiirr this deponent maketh 
oath. 

WILL. JONES. 

Sworne in open court ye 19th of July, 1664. 

Test, 

ROB'T HUTCHINSON, 

Cls. Cur. Co. Accom'k. 

The severall persons subscribed doe make oath yt they have of long 
time past heard of and knowne ye river of Pokomoke, and yt ye 
said river hath bin so called tyme nut of mind, both by ye re- 
port of ye Indians and knowledge of ye subscribers, and is to this 
day so called, being a river on ye Easterne shore of Chessepeack bay 
in Virginia, lying to ye southward of a small spirall point on ye south- 
side of Aamessecks, and yt point is to ye southward of ye place de- 
scribed in Capt. Smith's mapp for Watkins point, so farr as a man 
can see in a clear day, and yt said river of Pokomoke, and so situate 
as aforesaid is so called to this day. 

EDM. SCARBURan, 

WILL JONES. 

GEO. PARKER. 

ANTO. HODGKINS. 

JNO. RENNY. 

JNO. WISE. 

EDW. REVELL. 

CHARLES SCARBURGH. 

Sworne in open court ye 19th of July, 1664. 

Test, 

ROBT. HUTCHINSON, 

Cls. Cur. Co, Accom'k. 



80 

The foregoing are correct copies from the records of the clerk's 
office of the county of Accomack. 

Test, 

M. OLDHAM, Dy : 
For WM. H. B. CUSTIS, C. A. C. 
1871. Mar. 21st. 

Clerk's fee for copies, &c., $2 89c. 



Conference between Lord Baltimore and Wm. Penn. 



State Papers, Colonial, Maryland, vol. 43, y. 149-153. 
(Dec'r 13th, 1682.) 

A Conference held betweene the Right Hou'ble the Lord Baltimore, 
Proc. of Maryland, an William Pen, Esq'r, Proprietary of Pensil- 
vania, at the house of Col. Thomas Tailler, on the Ridge in Ann 
Arrundell county, Wednesday, the 13th of Dec'r, 1682, viz: 

William Pen, Esq'r, declares in a very florid manner, his real and 
hearty inclinations to maintain and keepe a neighborly and friendly 
correspondence with his lapp and the people of this province, that it 
was not the ambition of gover'ment or dominion that flatter'd him 
into these parts of the world, but meerely to secure his owne that 
movee him to come into this country, which, sinc^ it was his fortune, 
he well enough liked, and shall staddy all wayes and meanes imagi- 
nable to approve himselfe a good neighbor, he then produces a letter 
from the king to the Lord Baltemore as a foundation or introduction 
to theire further discourse. 

His lopp haveing read the letter, answers, viz : 

Ld. B. : His majesties letter I receive with all respect, and with 
that sense of my duty as becomes me, but by the purport of this 
letter I conceive his Maj'tie hath received some misinformation, for 
the cleering of which I have here not only a coppy of mine, but a 
transcript of your pattent, by both which we must be govern'd, I 



81 

haveing I'or my Northern bounds the fortieth degree of Northern 
latitude, which by your patent is your Southern bounds, as Watkins 
point is mine. 

(Plis lordship then reads the bounds in the patten t.) 

William Pen, Esq'r. By my petition to the king, I craved five de- 
grees northward, the lords told me it was a great deale of land that 
my Lord Baltemore had, but two to which I replj^ed that the differ- 
ence was vastly great on my Lord Baltemore's side as for its position 
being richly accommodated with the bay on both sides, and severall 
faire navigable rivers and creeks, &c.; and my reason for so great a 
quantity was not out a covetuous humor, but only that I might reach 
the lake of Cannada, for the conveniency of an inlett to my province, 
to wdiich they gave theire opinion, that I should be answered to that 
by having a passage in this bay, but if the Lord Baltemore vv^ill stand 
to and abide by the literall sense of his pattent, then I think we must 
lay aside the king's letter untill we shall have first considered the 
grants and reasons of our pattents. IftheLof'd Baltemore will take 
thirty-seaven-and-halfe degrees for thirty-eight, and soo runn on to 
forty, being half a degree difterence, I think it is considerable, and had 
I covetted to have taken my commencement from Watkins point, as 
the Lord Baltimore is allowed, I had possibly gained more consider- 
ably, but confident that he wol'd not endeavor to deprive me of any- 
thing that might conduce to my benefitt without any great prejudice 
to himselfe, I was contented to begin where the Lord Baltimore 
ended, being firmly and stedfastly resolved to approve myselfe his 
good neighbor, and give him the right hand of fellowshipp, and it 
shall be the Lord Baltemore's fault and not mine, if there be not as 
fiiire and amicable correspondence between the two provinces' as be- 
tween any united provinces whatsoever, but if his majesties I're must 
be waived, we must proceed moderately to argue the grounds and 
reasons of our patents and. waite the king's leisure for a further inter- 
pretation of his grant to me. 

L'd B. It was never my intentions, nor indeed in my thoughts, to 

deprive Mr. Pen of anything that might conduce to his benefit soo as 

the same may not tend greatly to my prejudice, and what Mr. Pen 

meanes by a comencem't from Watkins point, I understand not but 

sure I am that had his pattent given him his comencem't anywhere to 

the southward of the fortieth degree of northern latitude he had de- 
ll 



82 

prived me of so mach of Eiy right which yet I believe Mr. Pen nev^r 
desired nor covetted. But Mr. Pen you seeme a little unkind in hav- 
ing proposed any deniall of mine to what you offered. And for any 
kindness you may reasonably expect from me I think it not soe well 
timed, let but the line be first layd out thereby to ascertaine to each 
ot us his propper and just bounds, and then lett it be seen whether I 
shall deny Mr. Pen any neighborly kindness within my power. 

W. P. The king, it's true, did command the laying out the line 
betweene us, but if for a more ready way of accomodacon to us both 
he hath thought fitt to make other proposals, I cannot tell why they 
may not be taken into consideracon, but 1 shall concede and waive 
that letter wholy making this further offer — the capes for several 
years have been reputed to lye in the latitude of thirty-seaven or be- 
tween thirty-seaven degrees and five minutes or thereabouts, and hath 
been so generally taken and approved on by all persons for some con- 
siderable space of years, and by which calculation all shipps and ves- 
sells have proceeded on their voyages before such time as either inte- 
rest or prejudice could sway them on the one side or the other, for 
then if the Lord Baltemore please to take his commence't from the 
capes, which has been generally and of so long continuance reputed to 
lye in thirty-seaven degrees and five minutes, and from thence measure 
by line two degrees fifty-five minutes will next reach to the fortieth 
degree. 

Ld. B. My pattent gives me the forteth degree of Northern lati- 
tude for my Northern bounds, and there is noo way soo certaine to 
find that as by an observation to be taken by a six tant of six or seaven 
foote radius, and such an instrum't you have belonging to Col. Lewis 
Morris, of New York, besides 5^our comencem't by your pattent is 
given at the fortieth degree of Northern latitude. 

W. P. When I shall only say we will wave and wholly lay aside the 
King's ire at this time, if the Lord Baltimore will begin at thirty- 
seaven and halfe insted of thirty-eight, he will then indeed have more 
than was designed for him. I therefore offer as a medium between us 
the more easily to accommodate this matter, lett the Lord Baltimore 
first begin at the antient and generally reputed and known place of 
thirty-seven degrees and five minutes, and thence with a direct line to 
forty. What falls then within his bounds, much good may it do him. 
[ am contented, and doubt not but he is so worthy and soe much a 
gentleman as not to endeavor to deprive me of anything shall appeare 
to be w'thin my grant. This I say I offer onely to lett the Baltimore 



83 

know that, altho I am sensible tlie king's letter is grounded upon 
strong presumption and strong circumstance, yet I am willing to waive 
that and accomodate the business between us a more equal way, as I 
conceive, vis: To coraence at the comon generall and so long reputed 
known place, before either the Lord Baltimore or my selfe would chal- 
lenge any interest in these parts of the world. 

Ld. B. It is other discourse that I expected to have heard from you 
at this time, and well hoped I should have bin soe farr favored by you 
as to have received some small advice from you before you had soe farr 
proceeded upon that part of the countrey which has bin allwayes re- 
puted and known to be justly claimed by me, but to wave that I de- 
sire to be informed by you whether you have purchased the duke's 
pretentions to Delaware. 

W. P. Upon terms of the moiety of halfe the revenues thereof to 
be reserved for himselfe. I hold it of his gift; but this leads to other 
discourse. I would willingly proceed first to the ascertaining the 
bounds between us. 

Ld. B. The certaine bounds betwixt us must be the fortieth degree 
of Northern latitude, as I have already shown you by my grant. 

W. P. And to find out that, I purpose, in my judgm't, the most 
equall way that can be, which is to begin at the capes, a place soe 
generally and so- h)ng known and reputed to lye within the latitude 
of thirty-seaven and five minutes, and has not for the space of soe 
many years bin known to vary foure or five minutes by any observa- 
tion 3'et taken, and soe from thence to measure two degrees, fifty-five 
minutes, which will just make the fortieth degree. 

Ld. B. My Southern bounds being Watkins point was so de- 
termined by commissioners from his majesty and others from my father. 
Now had they sett out Watkins point higher up the bay my fathet 
must have ben contented therewith, and the Northern bounds being 
the fortieth degree of Norther latitude beyond w'ch I am not to runn. 

W. P. Possibly the Lord Baltimore's Southern bounds might be 
layed out by commissioners, who may ba could, or did not, see what 
they did. The uncertainty of an observation, I apprehend and con- 
ceive, is dangerous to confide in, for by the shakeing of a hand, the 
error in the instrument, or the unskillfullness of ignorance of the ob- 
servaior, great inconveniences may occur to the prejudice of either 
side; but I doe offer as the most equal way between us to pitch upon. 
The soe long reputed and generally known and received place of thirty- 
seaven degrees, odd minuts, w'ch for the space of forty, fifty or sixty 



84 

years has bin concluded the latitude of the capes (speaking now of 
antiquity and before even the Lord Baltimore or myselfe were ever con- 
cerned in these parts), and from thence to measure by line till we ar- 
rive to forty; which I conceive farr more safe than to trust to ignor- 
ance of an observator, the shaking of his hand, or a bad instrument. 

Ld. B. A more certaine observation of the fortieth degree may be 
now taken at the head of the bay. Then formerly there was of thirty- 
seaven and halfe where you say the capes lyes; and I apprehend it to 
be more safe and sure for us both to have an observation taken in the 
proper place, with such an instrument as I have already spoke of; and 
surely Mr. Pen you will as well confide in your friends as I shall on 
such as I shall appoint to joine with them. Now, for your owne sat- 
isfaction, the course you have proposed may be pursued, but that 
which I shall depende on, and be wholly determined by, is a due ob- 
servation to be taken of the fortieth degree being the Northern bounds 
of my pattent. 

W. P. I do not object against the Lord Baltimore's bounds, but I 
say to find out w'ch, I think a case wherein a man ought to be as 
cautious as in the choice of a wife, well to consider before hand I pro- 
pose the most equal way between us both to take our comencement 
from a certaine general reputed taken and received place of latitude of 
soo many years standing, described by all mapps, and by which all 
masters of shipps and vessells have been governed, and so from thence 
proceed distinctly to measure to forty, soe to remain to posterity, in 
order to the wavering any future disputes or difierences, wch is all the 
favor I request. 

Ld. B. Since you owne the case to be soe teoder as truely I doe, I 
think there will therefore be the greater reason to have our business 
determined the best and surest way, w'ch I have already offered; tho', 
for your satisfaction, Mr. Pen, I shall not refuse the liberty to any 
person to doe that w'ch you propose, and make report to you that 
which I am not resolved to trust to and be concluded by is an obser- 
vation to be taken with an instrument of six or seaven foote diameter 
for the sun will deceive neither of us. 

W. P. I acknowledge that as favor from the Lord Baltimore, but 
still I moove the most equall way, in my opinion, of ascertaining the 
bounds between us. 

Ld. B. Mr. Pen, you did, I remember, once propose to me, in Eng- 
land, that you had offers made you of that part of Delaware from his 
royal highness which I lay claime to, but you would not, as you theq 



85 

said, accept thereof, becaiuse y,on knew it was mine. The same I heire 
you iiave now possessed yourself of. 1 only desire to know upon what 
you claime. 

W. P. If the Lord Baltimore please, I desire we may first conclude 
our former discourse, and then I shall she\V myselfe most willing and 
ready to give you all satisfaction I can on that point. 

Ld. B. I am willing and have always bin ready to conclude the 
business of the bounds according as my patten fc directs me. 

W. P. I conceive that where there is a certaine d-^gree allowed, of and 
generally received for the space of soo many years, to coraence there and 
so proceed by measure to the fortieth degree is the most equall way can 
be proposed, and am willing to be concluded thereby, and hope the 
Lord Baltimore may not be opposite to it, and if that which is not the 
hundredth ])art of my Lord Baltimore's interest may be ninety-nine 
parts of the hundred of mine; nay, possibly, sine que non that upon 
which the rest wholly depends. The Lord Baltimore, I request, will 
not place my eagerness therein to the account of my disrespect, but 
of my interest and honest endeavors to hold a faire and amicable cor- 
respondence with him; for that I cannot imagine that fifty or sixty 
years experience and generall concurrence in opinion could have any 
(lesigne of favor or prejudice, either to the Lord Baltimore or myself. 

LM B. The latitude of the capes was taken by a sea quadrant, 
which by noe artist will be held soe exact and certaine as an instru- 
ment of six, eiglitor ten foote diameter; and with such an instrument 
1 desire the degree of forty taken. 

W. P. I doe not apprehend that a sea quadrant can have any pre- 
judice for the Lord Baltimore more than for William Pen. 

L'd B. I say that it was more uncertain; the observation formerly 
taken at the capes by a sea quadrant, then an observation now to be 
taken of the fortieth degree of northern latitude with such a fisch 
land instrument as I have already made mention of can be. 

W. P. You say true, the taking of thirty-seven then may be at< 
uncertain as the taking of forty now; but I say an uncertainty of soe 
long standing and so generally received and approved of by all per- 
sons, when neither the instrument nor observation could be imagined 
to have any design of interest or prejudice for either of us, is safer to 
depend on than to rnnn into new errors; and then if it fall within my 
Lord Baltimore's bounds, I hope he will be kind to me; and if within 
mine, I shall approve myselfe as kind to the Lord Baltimore as I in- 
tended. 



86 

L'd B. The way that propose, should I yield, would be but error 
upon error; therefore let our bounds be ascertained as I have offered ; 
then possibly I may have an opportunity of shewing my kindness to 
Mr. Pen, and till that be done neither he nor I can api)rove ourselves 
as we both desire. 

W. P. I have, I think, proposed the most equitable way to that 
end, but suppose the capes to lye within the latitude of thirty-seven 
and this part of the country in thirty-six degrees and thirty minutes, 
which is halfe a degree difference What will then follow but to set 
the sea and land together by the eares .^ But waiving disputes of 
that natures, I am contented to take our commencement from the 
long gen<^ral]y taken and reputed place of thirty-seven degrees and 
five minutes, and thence to runn to forty, which I apprehend the most 
faire and equall way, and am thereby willing to be concluded. 

L'd B. AVould it not seem very strange and preposterous in Eng- 
land f )r me to proceed upon a bare suggestion or supposition of an 
observation of thirty-seven taken at the capes, and that by masters of 
ships with theire small quadrants, to find out the degree of forty. 

W. P. Lett the Lord Baltimore pitch upon one, and I another, to 
goe and take theire observation at the capes, and from thence calcu- 
late where Watkins point lyes (which will not cost above five or six 
days" expense), and from thence proceed to find out the degree of 
forty, by which, as I have soe often reiterated, I am willing to be con- 
cluded. As for the land in dispute, I value it not but barely for an 
inlett for the conveniency of my province. 

L'd B. It is not to deprive Mr. Pen of an inlett to his province, 
but my interest, which makes me argue thus much; for should I con- 
sent to take that for my bounds which in truth is not, would be a 
meanes to destroy the very foundation of my patent, which you can- 
not blame me if I be not soe forward to doe. 

W. P. If the Lord Baltemore would vouchsafe to discourse with 
me a word or two in private, I should possibly open myselfe more 
fully and freely in this point, and frauckly acquaint him what I would 
request of him, and whether the head of the bay fall within his or my 
bounds we should, I doubt not, make all things comodious between 
us; for which reason I would crave a little private discourse with the 
Lord Baltemore. 

L'd B. I hope I have not offered anything injurious to Mr. Pen, 
onely am desirous to preserve my ov/n interest, to which end I desire 
that two able men may be made choice of to find out the degree of 



87 

knty, whereby I am bounded by my patent to the Northward. Here 
is Capt'n Connaway, a good, discreete, able man, lett him be one be- 
fore he goes out. 

W. P. Capt'n Connaway, its true, is a knowing person, but before 
we goe further I am desirous to purg(.' him of some aspersions have 
been cast on him that he should have advised me, I doe dedare that I 
never had any advice from him in this particukr, neither indeed did 
I, to my knowledge, ever see him before such time as I had my pat- 
tent granted me. 

Ld. B. What has been said of Capt'n Connaway I know not, 
but whatever he hath said or don I doe assue you never tooke any 
impression upon me, but that some misreports have been made the 
mapps and draughts which have ben sett forth sufficiently evince. 

W. P. Upon the view of the mapp of Maryland some persons taking 
the meetes as the same lay displayed, found that the author had either 
much abused the Lord Baltemore in the wrong calculation or else al- 
lowed him more land then indeed was intended for him, and accord- 
ingly some draughts have bin made. 

Ld. B. My patient gives me, as you and all here present know, 
the fortieth degree of Northern latitude and the same with such an 
instrument as I have mentioned will soone satisfie us where that is for 
thither my pattent guids me. 

W. P. Then thus in short I have here produced the king's letter 
in answer to which the Lord Baltemore sayeth that he will rather 
abide by his pattent which is under the great seale then to the bare 
contents of a letter. 

Ld. B. Mr. Pen were it your case would you not stick to a pattent 
so plaine as mine is.^ 

W. P. I doe not blame the Lord Baltemore, it may be I should 
doe the same as he does, I have consented to wave that, and for the 
more equal accomodation between us I have proposed that for the as- 
certaining the bounds between us let us begin and take our com- 
encem't from the capes soe antiently and generally knowne and repu- 
ted to lye within thirty-seven degrees and five minuts, and thence 
proceed till we come to forty which binds the Lord Baltimore to the 
Northward, and from whence I must begin to that the Lord Balte- 
more doth reply that true he is bounded by the fortieth degree to the 
Northward, and the most exact way to find that out is, by an obser- 
vation taken with a land instrument in answer to which I have re- 
turned that I conceive that to be a uncertain way for the reasons I 



have so often Uiged and say lett some persons be jointly commission^ 
ated between us to take observation at the capes and report how much 
it varies from the antient generally reputed and received opinion and 
then proceed to find the latitude of Wat kins point, and from thence 
by an exact line measure out to the degree of forty to that end if the 
Lord Baltemore please to select four or five persons to be jointly im- 
powered betweeen us so unanimously to proceed without jarring which 
will consequently arise upon different parties. 

Ld. B. That may be don for your private satisfiction by any per- 
sons that may make theire report to you. 

W. P. I doe. propose and request that we may accommodate the 
business betweene ourselves. 

Ld. B. I onely first premise tiiat an observation be duely taken to 
answer the king's coraands. 

W. P. I question not but if the Lord Baltemore vouchsafe to dis- 
course the business in private with me we should fairely accomodate 
all matters. 

The foregoing is to our certaine knowledge the sum and substance 
of what materially was argued and spoken by the Right Hon'ble 
Charles Lord Baltemore and Wm. Pen, the day and place aforesaid 
which hath been read to and api)roved by — 

PHILIP CALVERT, 
THOMAS TAILLER, 
HENRY COURSEY, 
HENRY DARNALL, 
WM. DIGGES, 
WILL STEVENS. 

A true copy examined by me. 

C. BALTEMORE. 

Lett my cusen, Mr. John Darnall, the lawyer, and ray kinsman, Mr 
Matthew Merriton, have the perusall of this as also of the narrative 
sent herewith to you by 

Your friend, 

C. BALTEMORE. 



89 
Endorsed : 



Maryland^ 13th Dec'r, 1682. 



A conference between Ld, Baltimore and Mr. Pen touching their 
boundaries. 



LETTER FROM LORD BALTIMORE. 



No. 119. 

Patuxent, llih June, 1683. 

My Honored Friend : 

I most thankfully acknowledge the favour of your last letter 
of the 9th of February, which came to my hands by Capt. Joseph 
Eaton, commander of the shipp Merchants Delight. It was with 
great satisfaction that I read your obligeing expressions therein, and 
noo little comfort to me also your assurance that the Lords of the 
committee were pleased with my proceedings and management of 
affaires of my provinces. I assure you, and (if you please) you may 
in my behalfe assure theire Lapps, that it shall be my endeavor, as it 
is my great ambition, to deserve the continuance of theire good 
opinion of me, and their kind approbation of my actions here, without 
whichj and the grace and favor of my Sovereigne, I take noo content 
and satisfaction in anything of an estate in this place or any other 
part of the world. Haveing given this assurance as the truth of my 
part, I will now only add, that having lately had the long-desired 
second conference with my neighbor, Mr. William Penn, I send you 
the same in writeing, being the enclosed paper, which I have signed, 
and will justifie to be the sume and substance of what was argued, 
spoken and debated at New Castle on Delaware river, Tuesday, the 
29th of May last, by the said Pen and my selfe. The lavor that I 
will now beg of you is this, that if Mr. Penn should move for any 
further order and comands in reference to the bounds of the two pro- 
vinces, you will please, in my behalfe, to request I may have time to 
be heard in person, and (God willing) I will, Aprill next, most as- 
suredly, embarque for England, in order to make my just defence, and 
12 



90 

also that I may there be heard to make out my just claime to those 
parts on Delaware bay an river within the degree of forty Northerly 
latitude, which the said Penn pretends now to hold by writeings from 
his Royal Highness, the Duke of York. Good sr., move this in 
favor of 

Your most affectionate friend, 

And humble servant, 

C. BALTEMORE. 



SUBSTANCE OF ARGUMENT 

BETWEEN 

LORD BALTIMORE AND WILLIAM PENN. 



[Coppy.] 

The sume and substance of what was argued and spoken by Charles 
Lord Baltemore and William Penn, Esq'r, at theire private con- 
ference, at New Castle, on Delaware river, Tuesday, the 29th of 
May, 1683 : 

Mr. Penn haveing by his letter of the 23d of April last, desired 
that I would lett him know where in some neere part of my province 
he might meete me, and that with what speed my affaires would per- 
mit, I wrote him word that I would begin my voyage up the bay 
about the middle of May, which accordingly I did, and being arrived 
at Sasafras river Wednesday, the 23d of the said month, I dispatcht 
from thence Mr. John Darnall, one of my chief secretaries, with a 
letter to Mr, Penn, signifieing my arriveall at that part of my pro- 
vince, and Tuesday following being the 29th of the same month, I 
mett Mr. Penn about eight miles short of New Castle, to which place 
that day I came in company with the said Penn. In the evening, the 
same day, I desired to know of Mr. Penn what proposals he had to 
make, signefieing that I was come thither to see what friendly issue 
might bs put to the business of our bounds, to which he answered, 
that tho' he the' his majesties letter of the 29th of August (82) was 



91 

not to be insisted on by bim as to tbe two degrees mentioned therein, 
be con there was yet an admeasurement to be insisted on still 

that seeming very strange to rae both in regard that Mr. Penn bad (at 
a conference afore) consented to waive that letter, as also in regard 
that it was not agreeable to my pattent, be tooke some paines (and 
not without some heat) to let me understand what be meant by another 
admeasurement, which he said must still be insisted on, being thus 
that as my Northern bounds was the lortieth degree of Northern 
latitude, he did not doubt but to have that ascertained by an ad- 
measurement in this manner that there should be an observation first 
taken at Watkins point, and according to the latitude that that place 
by an observation should be found to lye in, that from thence there 
should be an admeasurement to the degree of forty, saying that out 
of every degree he did not doubt but to gaine six or seven miles, and 
by that meanes to gett water at the head of Chesapeake bay, and that 
this was the mistery which he was plaine to tell the Lord Baltemore, 
and did assure me that be would procure it from his Maj'tie, to 
which I answered, that if he could impose his dictates upon the king 
and council, it would be in value for me to hope to have justice don 
rae. But I was not (as I told him) of opinion that he could impose 
in that kind, and since he discourst of having an observation taken at 
Watkins point (my South bounds) in order to such an admeasurement 
»s he last proposed to himself, I did not see any reason why my North 
bounds might not also be ascertained by an observation, and then de- 
manded of him how he resolved to have the Northern bounds of his 
province (being tbe 43rd degree of Northern latitude) settled and 
fixed, and he answered me by an observation, to which I againe re- 
plyed, that he did not then approve of an admeasurement for bis 
three degrees, tho' he thought it necessary in ray case, and yet I 
said to him that there wns more reason for admeasurement as to his 
bounds (there beiug severall degrees mentioned in his grant) then 
in mine, where I had nothing given me by any number of degrees 
but only Watkins point for my South bounds and the degree of 
forty for my North bounds, besides than an admeasurement in my 
case might be laid not to be rationally practicable, as will easily 
be made appeared (this having been argued with some earnestness.) 
Mr. Penne (at last) told me that if I would hearken to and accept of 
a pr.iposall which he had to make me, be did not doubt but all mat- 
ters would soone receive a friendly issue. I told him I was desirous 
of nothing more than that our differences might be amicably ended 



92 

betwixt us. He then proposed this, that if I would let him have Sus- 
quehanna river for an inlett, and land enough on each side the said river 
sufficient for his occasions, and that I would let him know certainely 
under my hand what price or value I would set upon the same, he 
wonld then willingly join with me in taking an observation to finde 
the degree of forty Northerly hititude, and with such instruments as 
we had then proper for that purpose. To this I answered that I 
wondered should I be willing to dispose of that which he desired, how 
he could expect I was able to give him anything certain under my 
hand, afore I knew certainly how far North up Susquehanna river Ihe 
fortieth degree Northern latitude (my North bounds) would reach. 
He then desired to know what latitude Capt'n James Conaway and 
some other persons found Palmers island, which is in Susquehanna 
river, to lye in by an observation I had caused to be taken, the 28th 
of February last. For his satisfaction therein I produced to him the 
observation under theire hands, and the same read to him, by which 
he said that the said island was sixteen miles to the southward of the 
degree forty; and then h^ told me that by an observation he thought 
New Castle was about twelve miles from the said degrree, and then 
proposes to me that if I would give him from under my — what he 
must give for as many miles as I should runn up the said river, say- 
ing it tenn miles, how much I would demand for tenn miles; and if 
sixteen miles, how much for 16 miles, and that after I had given hiiji 
this certaine under my hand, he would then be willing to go with me 
to the heads of the river and joine with me in the taking observations, 
as I had all along insisted on adding that we should take but a few 
persons with us, and not have the noise and trouble of any troopes of 
horse. As this proposall was new, and a very strange way of pro- 
ceeding, as I thought, I desired some time to consider of what he had 
offered, but I found he was not willing to give me any longer time 
than the next day, being the 30th of May, so that I took that little 
time to consider of his proposals, and made him some other ofi'ers, 
which he thought not good to yield to; after which we parted, and this 
is the sum and substance, nay (I may almost say) the very words that 
were spoken on both sides. But that it is the substance of what was 
(at that time) argued and spoken by Mr. Penn and me, I will make 
oath when required, and I doubt not but Mr. Penn will own as much 
when we meet at the Council Board, 

C. BALTIMOEE. 
This 31st May, 1683. 



93 

I certify that the foregoing ip a true and authentic copy, taken from 

the volume above named, 

JOHN MoDONAGH, 

Record Agent. 
July 14th, 1871. 



LETTER FROM THE KING TO LORD BALTIMORE. 



No. 117. 

State Papers — Culonial Entry Book — Vol. 52, p. 88-9. August 
19th, 1682. 

Right trusty and well beloved, — We greet you well. Whereas by 
our letters patent bearing date the 4th day of March, 1680, we have 
been graciously pleased, out of our royall bounty and the singular re- 
gard we have to the merits and services of Sir William Penn, de- 
ceased, to give and grant to our trusty and well-beloved subject, Wil- 
liam Penn, Esq., son and heir to the said S'r William Penn, a certain 
tract of land in America, by the name of Pennsylvania. And inas- 
much as the same, according to the bounds thereof, expressed in our 
said letters patents, borders on Maryland, we think it will very much 
conduce, as well to our service and the improvement and melioration 
of the said colonies, as to the benefit of the particular planters in 
both, that the boundaries in both of them be set forth and ascertained, 
which cannot by any method hd so certainly effected as by an admea- 
surement of the two degrees North from Watkins point, the express 
South bounds in your patent, and already settled by commissioners 
between Virginia and Maryland. And being willing to give the said 
William Penn all fitting encouragement in planting the said province, 
for preventing all disputes which may disturb an amicable and negh- 
borly correspondence between you two and our subjects under yo'r 
respective commands, wee have thought fit hereby to recommend the 
same in a most particular manner to you, willing and requiring you 
that with all possible speed, upon the receipt hereof, you proceed to 
determine the Northern bounds of your provinces, as the same borders 



94 

on Pensilvania, by an adnaeasurement of the two degrees granted in your 
patent, according to tiie usuall computation of sixty English miles to 
a degree, beginning from the South bounds of Maryland, according as 
the same are already settled by commiss'nrs as is above mentioned, 
that so our subjects transporting themselves into Pensilvania may re- 
ceive no discouragement by loss ot time to the prejudice of our ser- 
vice and their concernes. And so wee bid you heartily farewell. 

Given at our court Windsor, the 19th day of August, 1682, in the 
four and thirtieth year of our reign. 

By his mat's command, 

CONWAY. 

I certify that the foregoing is a true and authentic copy taken from 

the volume above named. 

JOHN McDONUGH, 

Record Agent. 
July 14th, 1871. 



S. P. 0. ) ^ , 

Colo. Vol. 6, No. 77. | Orders. 

Att the Starr Chamber, the third of July, 1633. 

Present— Lord Keeper, Earle of Danby ; Lord Privy Seale, Lord 
Viscount Wentworth ; Lord High Chamberlain, Lord Viscount 
Faulkhind ; Earl of Dorsch, Lord Cottington ; Earl of Bridgwater, 
Mr. Secretary Windebauck. 

Whereas an humble petition of the planters in Virginia was pre- 
sented to her Majestic, in which they remonstrat that some grants 
have lately been obtained of a great proportion of lands and territorys 
within the limits of the colony there being the places of their traflSck, 
and so near to their habitations as will give a generall disheartnin"- to 
the planters if they be divided into severall governments, and a barr 



95 

to that trade which they have long since exercised towards their sup- 
portation and relief under the confidence of his majesties royall and 
gracious intentions towards them, as by the said petition more largely 
appeareth ; forasmuch as his majesty was pleased on the 12th of May 
last to referr to the board the consideration of this petition, that upon 
the advice and report of their lordships such orders might be taken as 
to his majesty's wisdom should seem best. It was thereupon ordered 
on the 4th of June last that the businesse should be heard the second 
Friday in this terme, which was the 28th of the last month, and that 
all parties interessed should then attend, which was accordingly per- 
formed, and their lordships having heard the cause, did then order 
that the Lord Baltemore being one of the partys, and the adventuress 
and planters of Virginia aforesaid, should meet together between that 
time and this day and accommodate their controversy in a friendly 
manner, if it might be, and likewise set downe in writing the propo- 
sitions made by either party with their severall answers and reasons, 
to be presented to the board this day, which was likewise accordingly 
done. Now their lordships having heard and nrnturely considered the 
said propositions, answers and reasons, and whatsoever else was 
alleaged on either part, did think fit to leave the Lord Baltimore to 
his patent, and the other partys to the course of law according to 
their desire. But for the preventing of further questions and differ- 
ences, their lordships did also think fit and order that things standing 
as they do, the planters on either side shall have free traffick and 
commerce each with other, and that neither part shall receive any 
fugitive persons belonging to the other, nor do any act which may 
draw a warr from the natives upon either of them, and lastly, that 
they shall sincerely entertain all good correspondence and assist each 
other on all occasions in such manner as becometh fellow subjects and 
members of the same State. 



96 



LETTER FROM LORD BALTIMORE TO THE KING. 



No. 13. 
State Papers— Colonial— Vol. 5, No. 27. 

August 19, 1629. 
Most gracious and dread Soveraigne: 

Small benefits and favors can speake and give thanks, but such 
as are high, invalerable, cause astonishment and silence. I am obliged 
unto yo'r ma'ty for the latter in such a measure. As reflecting upon 
my weakness and want of merit, I know not what to say. God Al- 
mighty knowes, who is the searcher of hearts, how rayne earnes to 
sacrifice myself for yo'r ma'ty's service. Yf I do but know how to 
employ my endeavors worthy of that greate goodnets and benignity, 
which your ma'ty is pleased to extend towards me upon all occasions, 
not only by reaching yo'r gracious and royall hand to my assistance 
in lending me a faire shipp (for w'ch upon my knees I render yo'r 
ma'ty most humble thankes), but by protecting me also against ca- 
umny and malice, w'ch hath already sought to make me seeme fowle 
in yo'r ma't's eyes. Whereas I am so much the more confident of 
God's blessing upon my labor in these plantations- (notwithstanding 
the many crosses and disasters I have found hitherto), in that a prince 
so eminently virtuous hath vouchsafed to take it into the armesof his 
protection; and that those who go about to supplant and destroy me, 
are persons notoriously lewd and wicked. Such a one is that auda- 
cious man, who being banished the colony for his misdeedes, did the 
last wynter (as I understand) raise a false and slanderous report of 
me at Plymmouth, w'ch comming from thence to yo'r ma'ty's knowl- 
edge, you were pleased to referre to some of my lords of the councell, 
by whose hon'ble hands (for avoyding the ill manners of drawing this 
letter to too much length) I have presumed to returne my jnst and 
appologie to yo'r ma'ty. 



97 

But as those rubbs have been layd to stumble me there (w'ch dis* 
courage me not, because I am confident of yo'r ma'ty's singular judg- 
ment and justice); so have I mett with greave difficultyes and incum- 
brances here, w'ch in this place are no longer to be resisted, but en- 
force me presently to quitt my residence and to shift to some other 
warmer climate of this new world, where the wynter bs shorter and 
lesse rigourous. For here yo'r raa'ty may please to understand that I 
have found by two deare bought experience, w'ch other men for their 
private interests always concealed from me, that from the middlest of 
October to the middlest of May there is a sadd fare of wynter upon 
all this land; both sea and land so frozen for the greater part of the 
tyme, as they are not penetrable, no plant or vegetable thing appear- 
ing out of the earth, untill it be about the beginning of May, nor 
fish in the sea, besides the ayre so intolerable cold, as it is hardly to be 
endured. By meanes whereof, and of much salt meate, my house 
hath beene an hospitall all this wynter of 100 persons, 50 sick at a 
time, myselfe being one; and nyne or ten of them dyed. Hereupon I 
have had strong temptations to leave all proceedings in plantations, 
and being much decayed in my strength, to retire myselfe to my 
former quiett; but my inclination carrying me naturally to these kynd 
of workes, and not knowing how better to eraply the poore remayn- 
der of my dayes, than, with other good subjects, to further, the best 
I may, the enlarging yo'r ma'ty's empire in this part of the world. I 
am determined to committ this place to fishermen that are able to en- 
counter stormes and hard weather, and to remove myselfe with some 
40 persons to yo'r ma'ty's dominion Virginia; where, if yo'r ma'ty 
will please to grant me a precinct of land w'th such privileges as the 
k. yo'r father, my gracious ma'ty, was pleased to grant me here, I 
shall endeavor, to the utmost of my power, to deserve it and pray for 
yo'r ma'ty's long and happy raigne, as 

Your ma'ty's most humble and faithful subject and servant, 

GEO. BALTIMORE. 
Foryland, 19 August, 1629. 

I certify that the foregoing is a true and authentic copy, taken from 
the volume above named. 

JOHN McDONAGH, 



Record Agent. 



July 14th, 1871. 

IS 



No. 14. 
State Papers— Colonial— Vol. 5, No. 39. 

Signed Charles K. 

Right trustie and well beloved, we greete you well. Such is 
and ever hath Leen the estimation we make of the persons of our lov- 
ing subjects who employ themselves in publick actions that tend to 
the good and glorie of their countrie, and the advancem't of our ser- 
vice, as we cunnot but take notice of them, though of the meanest 
condition; but much more of a person of yo'r qualitie, who have, been 
so neare a servant to our late deare father of blessed memorie. And 
seeing your plantation in Newfoundland (as we understand by yo'r 
letters) hath not answered your expectation^ which we are informed 
you take so much to heart (having therein spent a great part of yo'r 
meanes) as that you are now in pursute of new countries. We, out 
of our princely care of you, well weighing that men of yo'r condition 
and breeding are fitter for other employments than the framing of 
new plantations, which commonly have rugged and laborious begin- 
nings, and require much greater meanes in managing them than usu- 
ally the power of one private subject can reach unto, have thought fit 
hereby to advise you to desist from farther prosctiog yo'r dessigns that 
way, and with your first conveniency to returne backe to yo'r native 
countrie, where you shall be sure to enjoye both the libertie of a sub- 
ject and such respect from us as yo'r former services and late endeavors 
doe justly deserve. 

Given at o'r pallace of Whitehall, this 22nd of Novemb'r, in the 
5th yeare of our raigne. 

Endorsed : 

Copie of his matie's letters to the L'd Baltimore, as (two equall 
copies) were brought to the L'd Viscount Dorchester by the Earle 
Marshall and the I'd president of the North, and by my lord sealed 
with the signet, the day of the date 22 of November, '29. 

I certify that the foregoing is a true and authentic copy taken from 

the volume above named. 

JOHN McDONAGH, 

Record Agent. 

July 1, 1871. 



99 

S, P. 0. Colonial, No. 5, endorsed demands w'th reasons for 2 degr. 
of Mr, Alloarmy grat. 

10th Feb'ey, 1629. 

1. 2 degr. are demanded, because an association is presently in- 
tended for a great sum of money to commence this year, w'th a great 
number of men to people ye same and to fortifie and fiirnislie them- 
selves w'th all provisions, munitions and armes or commodities, yt 
shall subsist of yourselves for ye futture and yearly multiply in their 
numbers of men to be transported to ye first colonie. And the prin- 
cipall undertakers being men of qualitie and good means, desire ye s'd 
2 degrees upon conditions following : 

2. The donation therof be made unto A and B in proprietie, w'th 
charge to hold of ye lord predominant under his Ma'ty ye soveraigne, 
paying hali' a mark of gold for a relief. 

3. That ye s'd A and B shall have power to creat and establishe, 
or confirme, for ever, officers, ministers and agents of all qualities and 
conditions, touching as well ye church as ye military and politicall 
part of gover'm't, according to ye grail orders and lawes of ye whole 
province ; paying and causing to be payd to these officers, ministers 
and agents all their entertainm'ts and wages, what charge or expense 
in any kinde unto ye se, Sr. Kobt. Heath. 

4. That ye s'd A and B shall cause to payed by the fermers ord'rie 
of ye Lords rights and duties ye half of all ye s'd rights and duties 
of all kinds whatsoever, all well of all mins, mineralls and salts and 
of all fruits and issues and profits, arising out of ye labour and works 
of ye inhabitants of ye s'd 2 degrees. The other half of the premises 
being left and apperteyning unto ye s'd A and B to be received of ye 
said fermes, that is to say ye twentyth part of all mines, mineralls 
and salt, and ye fortieth part of all fruits, profits and issues arising 
out of ye earth w'th ye s'd 2 degrees. 

Motives in behalf of A and B. 

That is impossible for A and B to raise other profits or favor out of 
ye s'd 2 degr., forasmuch as it is a willbe booties unto them, as also 
ye Lord paramount to have ye s'd lands lye untilled, &c. ; and yt the 
people who shall labour and till ye s'd lands will not paye above a 
tenth for ye mines and a tenth of ye salt w'th a twentieth part of ye 
profits of ye earth, w'ch tenths and twentieths are entierly all ye 



100 

rights and duties can be pretended upon ye s'd 2 degr., and therefor 
it is just and reasonable, yt they yt shall be of good conditions and 
disburse so much moneys, shall have ye same in half, who otherwise 
should have nothinoj, and this is ye least favour can be granted unto 
those who shall forthwith so largely people any new plantation. 

2. To grant lands unto any particulars is to ruine their plantations 
beforehand, and so to forstall and confounde ye work yt never any 
large, lasting and multiplying plantation can be raised, tho' spc. by 
reason nothing of this nature can be efiected but by ye principall un- 
dertaker to give ye same order and union to all, and have as well ad- 
venture as hand in the common work. 

3. The pr'U undertakers will be at very great charge to build forti- 
fications, paye such men. sold'rs and all other P. officers to build 
bowses fitting and strong ; to trans, all sort of cattail and poultery, 
as also beasts of service, w'ch is easily to be observed by the planters, 
&c., in Virginia, and the successe therof. 

4. That ye Lord president shall be, and his means bee from all 
publicy : charges and expences w'h soever of gover'm't, &c. 

These A and B make appeare their good affection by offering y'h 
after 3 yeare 1,000 lb., and after ye fifth year 2,000 lb., out of ye 
whiche province for ye "■•'" "-•■' "'•'■■ * '•'•■ forasmuch as if they cannot 
efi'ect the same they will discharge ye Lord of all his contract, and so 
leave him likely to dispose of his lands againe unto all or any other, 
as he shall have or see occasion for his better profit, loging or ad- 
vantasre. 



No. 15. 

State papers — Colonial — Vol. 5, No. 40. 

Nov. 30th, 1629. 
Eight Hon'ble : 

May it please yo'r lordhps to understand that about the be- 
ginninge of October last, there arrived in this colony, the Lord Balti- 
more from his plantation in Newfoundland, w'th an intention, as wee 
are informed, rather to plant himself to the Southward then settle 
here, although since he hath seemed well afiected to this place, and 
willing to make his residence therein, w'th his v/hole family. We 
were ready ly inclined to render unto his lordsh'p all those respectg 



101 

w'ch were due unto the honor of his person or w'ch might testifie w'th 
how much gladness we desired to receive and entertain him, as being 
of that eminence and degree; whose presence and affection might give 
greate advancem'ts to this plantation. Whereupon according to the 
instructions from yo'r lord'h'pps, and the usual course held in this 
place, wee tendered the oaths of supremaire and aleidgeance to his 
lordsh'p, and some of his followers, who making profession of the Ro- 
mishe religion, utterly refused to take the same, a thing w'ch we could 
not have doubted in him, whose former employm'ts under his late 
ma'ty, might have indeared to us a privation, he would not have made 
deny all of that in poynt, whereof consisteth the legaltie and fidelitie 
w'ch evry true subject oweth unto his soveraigne. His lord'hp then 
offered to take this oath, a copy whereof is included, but in true dis- 
charge of the trust imposed in us by his ma'tie, wee could not imagine 
that soe much latitude was left for us to decline from the prescribed 
forme, so strictly exacted and soe well justified and defended by the 
pen of our late soveraigne, Lord King James, of happy memory. And 
among the many blessinges and favors for w'ch wee are bound to blesse 
God, and w'ch the colony has received from his most gratious ma'tie, 
there is none whereby it hath beene made more happy than in the 
freedome of our religion, w'ch wee have enjoyed, and that no Pa- 
pists have befne suffered to settle their abroad amongst us. The con- 
tinuance whereof wee most humbly implore from his most sacred 
ma'tie, and earnestly beseech yo'r lord'hps that by your mediations 
and councells the same may be established, and confirmed unto us. 
And wee as our duety is w'th the whole colony, shall always pray for 
his ma'ties long life and eternall felicity, from whose royall hands this 
plantation must expect her establishment, and for whose honor God 
hath reserved so glorious a worke as the p'fection thereof. Wee 
humbly take our leaves. 

Yo'r lord'shp's very humble serv'ts, 

SAM. MATHEWE, 
JOHN POTT, 
ROGER SMYTH, 
W. CLAYBOURNE. 
The 30th November, 1629. 

(Addressed) To the right ho'ble the lords of his ma'ties most ho'ble 
pryvy councell. 

(Endorsed) From Virginia, 30tb Nov'r, 1629, 



102 

I certify that the above is a true and authentic copy taken from 
the volume above named. 

JOHN McDONAGH, 

Record Agent. 
JulySd, 187L 



Instructions of the King to Lord Culpeper. 

8th. You shall administer the oaths of allegiance and supremacy 
to the members and officers of the council and assembly, all judges 
and justices, and all other p'sons that hold any office in the s'd colony 
by veitue of any patent under our great seal of Eogl'd or ye publick 
seal of Virg'a; and you are to p'mit a liberty of conscience to all 
other p'sons (except Papist), soe they be contented with a quiet and 
peaceable enjoyment of it, not giving offence or scandal to the gov- 
ernment. 

Answer. 

All officers whatsoever, both civill and military, have constantly 
taken the oaths of allegiance and supremacy, according to the first 
part of this instruction; and in pursuance of the latter jDart I have 
stoppel execution given against one John Plaesants, aquaker, indited 
in Henrico county uppon the statute of twenty pounds p'r month for 
not coming to church, and for goeing to a conventicle untill his matie's 
pleasure should be known therein, the said Plaesants having carryed 
himself peaceably and quietly, and having never given offence to the 
gouvernment. 



103 



COPIED FKOM THE BRITISH ARCHIVES. 



State Papers, Colonial— Vol 5, No. 27. 

LORD BALTIMORE'S CASE UN-CASED. 

Chapter 143. — "The Lord Baltimore's Case" Concerning the 
province of Maryland, adjoining to Virginia, in America : with full 
and clear answers to all material objections, touching his rights, jur- 
isdiction, and proceedings there, and certnine reasons of state why the 
Parliament should not impeach the same; unto which is also annexed 
a true copy of a commission from the late king's eldest son to Mr. 
William Davenant, to dispossess the Lord Baltimore of the said prov- 
ince, because of his adherence to this common-wealth. London : 
Printed in the yeare 1653. 

The Lord Baltimore's Case. 

Concerning the province of Maryland, adjoining Virginia, in Amer- 
ica, &c. 

In 1632, the Lord Baltimore had a patent granted to him, and his 
heirs, of the said province of Maryland, with divers privileges and 
jurisdictions for the government thereof; tVie better to encourajje him 
to settle a colony of English there, whereby to prevent the Dutch and 
Swedes from incroaching any nearer to Virginia, Maryland being be- 
tween Virginia and the Dutch and Swedes plantation on that conti- 
nent, and New England beyond them to the Northward. 

The Lord Baltimore hereupon, in 1633, sent two of his own brothers 
with above 200 people, to begin and seat a plantation there, wherein 
and in the prosecution of the said plantation ever since hee and his 
friends have disbursed above £40,000, whereof £20,000, at least, was 



104 

out of his own purse. And his said two brothers died there in the 
prosecutions thereof. 

In Septem. 1651, when the councell of state sent commissioners 
from hence, to-wit: Captains Dennis Steg and Captain Curtis, to re- 
duce Virginia to the obedience of the parliament, Maryland was at 
first inserted in their instructions to be reduced as wall as Virginia; 
but the council being afterwards satisfied that that plantation was 
never in opposition to the parliament; that Captaine Stone, the Lord 
Baltemore's deputy then, was generally knowne to have been always 
zealously afi'ected to the parliament, and that divers of the parlia- 
ment's friends were by the Lord Baltemore's speciall direction re- 
ceived into Maryland and well treated there, when they were fain to 
leave Virginia for their good aifection to the parliament. Then the 
councell thought it not fit at all to disturb that plantation, and there- 
fore caused Maryland to be struck out of the said instructions; which 
was twice done, it being by some mistake or other put in a second 
time. 

In this expedition to Virginia, Captain Dennis and Captain Stegg, 
the two chief commissioners, were cast away, outward bound, in "the 
Admirall," of that fleet, which was sent from hence upon that ser- 
vice; and with them the original commission for that service was lost. 

But Captain Curtes, having a copy of the said commission and in- 
structions with him in another ship, arrived safe in Virginia, and there 
being also nominated in the said commission two other persons resi- 
dent in Virginia, to-wit: Captain Bennet and Capt. Clayborn (known 
and declared enemies of the Lord Baltemore's), they together with 
Capt, Curtes proceeded to the reducement of Virginia, which was 
afiected accordingly upon articles, among which one was that the Vir- 
ginians should enjoy the antient bounds and limits of Virginia, and 
that they should seek a charter from the parliament to that purpose. 

In the reducement of Virginia, Captain Stone (the L'd Baltemore's 
deputy of Maryland) sent to the commissioners, at the first arrival of 
the fleet in Virginia, to offer them all the assistance he could, and did 
actually assist them therein with provision of victuall and other ne- 
cessaries, as will be testified to (if need be) by Mr. Edward Gibbons, 
major-generall of New England, and divers others, who were then 
there and eyewitnesses of it, and are now here. 

Notwithstanding which, the said commissioners, after Virginia was 
reduced, went to Maryland, and upon pretence of a certaine clause 
(which it seems by some meanes or other was put into their instruc- 



105 

tlons after Maryland was struck out as aforesaid), to-wit : that they 
should reduce all the plantations in the bay of the Chesapeake to the 
obedience of the parliament, and some part of Maryland, where the 
Lord Baltemore's chief colony there is seated, being within that bay; 
as well as most of the plantations of Virginia are. They required 
Capt. Stone and the rest of the Lord Baltemore's officers there, first 
to take the ingagement, which they all readily subscribed, and de- 
clared that they did in all humility submit themselves to the govern- 
ment of the commonwealth of Englan.d in chief, under God. Then 
the commissioners then required them to issue out writs and processe 
out of the L'd Baltemore's courts there in the name of the keepers of 
the " Liberty of England," and not in the name of the " Lord Pro- 
prietary," as they were wont to doe; wherein they desired to be ex- 
cused, because they did not conceive the parliament intended to devest 
the L'd Baltemore of his right there; and that they understood out 
of England that the councell of state intended not that any altera- 
tion should be made in Maryland. That the king's name was never 
used heretofore in the sayd writs, but that they had always been in the 
name of the lord proprietary, according to the priviledges of his 
patent ever since the beginning of that plantation. That the late act 
in England for changing of the forms of writs, declared only that in 
such writs and process, wherein the king's name was formerly used, 
the keepers of the liberty of England should for the future he used 
instead thereof. That the continuing of the writs in the lord pro- 
prietary's name was essential to his interest there; and that therefore 
they could not, without breach of trust, concur to any such altera- 
tion. Whereupon the commissioners demanded of Captain Stone, 
the Lord Baltimore's commission to him, which he delivered, and then 
without any other cause at all, they removed the said Captain Stone, 
and the Lord Baltimore's other officers, out of their iraployment there 
under him; and appointed others to manage the government of that 
plantation till the pleasure of the counsell of State and Parlia- 
ment, should be further known. Therein seized upon all the records 
of the place, and sent divers of them hither, into England. All 
which they did without any opposition at all from Capt. Stone, or 
any other of Lord Baltimore's officers, in regard of their respect and 
reverence to the commissioners of Parliament. 

The colony of Virginia, not long after, sent one Colonell Mathews 
hither into England, to get their articles confirmed by the Parlia- 
ment, which were read in House on the 31st August, 1652. Upon 
14 



106 

the reading whereof, a petition of the Lord Baltimore's, and of about 
twenty more considerable Protestant adventurers and planters, to and 
in Maryland, who are known by divers members of the House to have 
bee well affected always to the Parliament, and who signed the said 
petition, was also read; whereby it was humbly desired that before 
the House passed that article, concerning the old limits of Virginia, 
the said petitioners might be heard by their council. In regard, 
Maryland was long since esteemed part of Virginia, and therefore 
they were concerned in that article. And they further humbly de- 
sired in the sayd petition, that the Lord Baltimore's officers might be 
restored to their places in Maryland under him; and that the peti- 
tioners might quietly enjoy the priviledges of the sayd patent of 
Maryland; upon confidence whereof, they had adventurned so much 
of their fortunes thither as aforesaid. 

Whereupon divers parchments, under the Lord Baltimore's hand 
and seale, which were sent out of Maryland by the sayd Bennet and 
Capt. Clayborn, were at that time produced to the House by a mem- 
ber thereof, who it seems conceived that there would appear some- 
thing in them whereby the Lord Baltimore had forfeited his sayd pa- 
tent, or at least, that his authority in Maryland was not fit to be al- 
lowed of by the Parliament, 

The house, on the 31 August, 1652, referred the sayd article con- 
cerning the old limits of Virginia to the committee of the navy, to 
consider what patent was fit to be granted to the inhabitants of Vir- 
ginia, and to hear all parties, and consider of their particular claims, 
and report the same, with their opinions, to the parliament; and the 
sayd parchments delivered in concerning Maryland, were also referred 
to the same committee. 

The Lord Baltemore accordingly made his claim before the said 
committee, unto whom he delivered a true copy of his said patent, 
and desired, therefore, that the patent, which the Virginians were 
suitors for, might not extend to any part of Maryland, it being made 
appear to the said committee, that that province had not been for 
these 20 years last past, accounted any part of Virginia. And that 
the Virginians had neither possession of any part thereof, at the time 
of the making of the said articles, nor for 20 years before; nor that 
the present inhabitants of Virginia had ever at all any right unto it. 

Then upon the suggestion of a member of that committee, certain 
exceptions against the Lord Baltimore's patent, and his proceedings 
thereupon in Maryland were shortly after presented in writing, to the 



107 

said committee, unto which the Lord Baltimore put in his answer also 
in writing, which was read, and the committee upon debate thereof 
(it seems) thought not fit to deliver any opinion in the business, but 
ordered that the whole matter of fact should be stated by a sub-com- 
mittee, and reported first to the said grand committee, and afterwards 
to the house. 

The exceptions aforesaid were many, but the substance of them are 
reduceable to these heads following, which are set down by way of 
objections, with answers to them : 

1. Object. A pretended injury done to the Virginians, by the said 
patent, in regard to Maryland was heretofore jiart of Virginia. 

Answer. The present inhabitants of Virginia had never any right 
to Maryland, more than to New England, which was part of that 
country, heretofore called Virginia, as well as Maryland, but distin- 
guished and separated afterwards from it by a patent, as Maryland 
was. There was, indeed, a patent, heretofore granted by King James, 
in the 7th yeare of his reigne, of a great part of that, Northern conti* 
nent of America, which was then called Virginia, to divers lords and 
gentlemen here in England, who were by that patent erected into a 
corporation, by the name of a Virginia company, in which tract of 
land granted to the said company, that country, which is now called 
Maryland, was included; but that patent was legally evicted by a 
quoranto in the then king's bench in 21 yeare of the said King James, 
8 or 9 years before the patent of Maryland was granted to the L. Bal- 
timore, which company or corporation the inhabitants of Virginia 
desire not now to revive by vertue of their articles above mentioned, 
but abhor the memory of it, in regard of the great oppression and 
slavery they lived in under it, when it was on foot, so as they, never 
having had any patent right, or possession of the sayd province of 
Maryland, there could be no injury done to them by the Lord Balte- 
more's said patent. After the eviction of the sayd Virginia companie's 
patent thereof. For it was as free in the late king's power to grant 
any part of that continent not possessed before by any legall grant, 
then in force from the crown of England, (which Maryland was not 
at the time of the Lord Baltimore's patent thereof), as it was for 
King James to grant the aforesaid country to the said Virginian com- 
pany. 

2. Object. A pretended wrong done by the Lord Baltemore to the 
above mentioned Capt. Clayborn, in dispossessing him of an island in 
the sayd province, called the Isle of Kent, 



108 

2. Answer. It was a business above 14 years since, upon a full 
hearing of both parties then present, decided by the then lord's com- 
missioners for forraign plantations, against the sayd Capt. Clayborn 
and his partners, Mr. Maurice Thomson and others; and the sayd 
Capt. Clayborn, hath himselfe, also by divers letters of his, to the 
Lord Baltemore, acknowledged the great wrong he did him therein; 
which letters were proved at the committee of the navy, and are now 
remayning with that committee. Wherefore, the Lord Baltemore 
humbly conceives, that against the sayd Capt. Clayborn's owne ac- 
knowledgement, and a determination so long since of that business, 
and above 14 years quiet possession in the Lord Baltemore of the sayd 
island. The parliament will not think fit upon a private controversie 
of meum and tuum between him and ths sayd Clayborne, to impeach 
his patent of the sayd province, or his right to the said island, but 
leave both parties to their legall remedy. 

3. Object. That the said patent constitutes an hereditary monarchy 
in Marjdand ; which is supposed by some to be inconsistent with this 
Commonwealth. 

3. Answer. The jurisdiction and stile which the Lord Baltemore 
useth in Maryland is no other then what is warranted in his patent, 
(as may appeare by his answer at the Committee of the Navy to the 
exception above mentioned, and by perusall of the said patent,) and 
that is onely in the nature of a county palatine, subordinate and de- 
pendent on the supreme authority of England. For by the patent, 
the soveraign, dominion, allegiance, the fifth part of all gold and silver 
oare, which shall happen to be found there ; and severall other duties 
are reserved to the late kings, his heires and successors, who are now 
the parliament of this commonwealth. And although it be true that 
a monarchicall government here, which should have any power over 
this commonwealth, would not be consistent with it, yet certainly any 
monarchical government in forraigne parts, which is subordinate to, and 
dependant on this commonwealth, may be consistent with it, as well 
as divers kings, under that famous commonwealth of the Eomans, 
heretofore were ; insomuch as they thought it convenient and fit to 
constitute divers kings under them. All lords of manors or liberties 
here in England may in some kinds be as well accounted monarchs, 
within their severall manors and liberties, as the Lord Baltemore, in 
Maryland, for writs issue at this day in their names out of their 
courts, within their respective manors and liberties ; and not in the 
name of the keepers of the liberties of England, Oaths of fealty are 



109 

taken to them by their tenants, and they have great royalties and 
jurisdictions ; some more than others, and some as great in proportion 
within their said manors and liberties as the Lord Baltemore hath in 
Maryland, except the power of making laws, touching life and estate, 
power of pardoning, and some few others of lesser concernment, 
which although that may not be convenient for any one man to have 
in England, yet are they necessary for any, (whether one man or a 
company,) that undertakes a plantation in so remote and wilde a 
place as Maryland, to have them there, especially with such limita- 
tions as are in the Lord Baltemore's patent ; to wit, that the laws be 
made with the consent of the freemen of the said province, or the 
major part of them or their deputies ; and that they be consonant to 
reason, and be not repugnant or contrary, but as near as conveniently 
may bee agreeable to the laws of England, which limitations the Lord 
Baltemore has not exceeded, as may appeare by his answer to the 
Committee of the Navy to the exceptions above mentioned. And 
although it be not fit that any one person should have a negative 
voyce here in the making of lawes, yet certainly as no company, so no 
single man, that is well in his wits, will be so indiscreet as to under- 
take a plantation at so vast an expence, as the Lord Baltermore hath ; 
if after all his charge, pains and hazards, which are infinite in such 
a business, such necessitous, factious people, as usually new planta- 
tions consist of, for the most part, and went thither at his charge of 
by contract or agreement with him, should have power to make lawes 
to dispose of him and all his estate there, without his consent, and 
he be left without remedy, for before the supreme authority here, 
upon any appeal to it, will probably be at leasure from business of 
greater consequence, or perhaps have convenient means to relieve him, 
he may be ruined and destroyed. Such chargeable and hazardous 
things as plantations are, will not be undertaken by any, whether it 
be a company or a single man, without as great incouragements or 
priviledges, as are in the Lord Baltemore's patent of Maryland. And 
if it be not any prejudice, as certainly it is not, but advantageous to 
the interest and honor of this commonwealth, that an Englishman, 
(although a recusant, for the Lord Baltimore knows of no laws here 
against recusants which reach into America,) should possess some 
part of that great continent of America, with the priviledges and 
jurisdictions aforesaid, dependant on and subordinate to it, then the 
Indian kings, or forreigners, (as the Dutch and Swedes afore men- 
tioned,) who have no dependency on it, as certainly it is. Then he 



110 

hopes the parliament will not thinke it inconsistent with this com- 
monwealth, but just, that he should enjoy the rights and priviledges 
of his patent. Upon confidence whereof, he and his friends have ad- 
ventured the greatest part of their fortunes, for the honour of this 
nation, as well as their own particular advantage, especially seeing no 
other person hath any wrong done him therein, for none are compelled 
to go to Maryland, or to stay there, but know before hand upon what 
terms they are to be, in that place. And the English inhabitants of 
that province are so well pleased with the government constituted 
there by the said patent, as that by generall consent of the Protes- 
tants, as well as Koman Catholiques, it is established by a law there, 
as well as freedome of conscience and exercise of religion within that 
province, is to all that profess to believe in Jesus Christ, as appears 
by the laws of that province, now in the hands of the said Committee 
of the Navy. Which makes it evident, that a petition, lately read at 
the committee, with ten unknown hands to it, in the name of the in- 
habitants of Maryland, against the Lord Baltemore's said patent, is 
eyther obscure factions fellows, which is easie to bee procured by any 
ill affected person against any government whatsoever. 

4. Object. That the Lord Baltemore gave his assent to certaine 
lawes, for Maryland, in 1650, in one of which lawes the late King 
Charles is stiled the late high and mighty Prince Charles, the first of 
that name, King of England, &c. And in another of the said laws 
it is enacted, that the Lord Baltemore shall have 10s. a hogshead for 
all tobacco's shipt from Maryland, in any Dutch vessell, and bound for 
any other port then his Majesties ; whereby some would infer that hee 
did acknowledge a Charles the Second to be king, &c., for that the 
word first in one law inferred a Secone ; and by the word majesty in 
the other law, the Lord Baltemore must mean the late king's eldest 
son ; for the late King Charles was dead when the Lord Baltemore 
assented to that law, to wit, in August, 1650. 

4. Answer. To this is answered : That although those lawes were 
assented unto by the Lord Baltemore in August 1650, yet it appears 
by his said declaration of assent that some of them were enacted in 
Maryland by the assembly there in April 1649; whereof the law was 
one wherein those words, to- wit: "any other ports than his majestie's," 
are inserted (as was proved to the said committee of the navy). At 
which time the people in Maryland could not know of the late king's 
death, which was but in January then next before. In February_, 
March and April ships usually return from those parts, and in Sep- 



Ill 

tember, October and November goe thither; so as the assembly in 
Maryland could mean nobody by that word majesty but the late king; 
and the Lord Baltemore could have no other meaning but what the 
assembly had, for he did but assent to what they had done and was 
before enacted as aforesaid. 

As to the other law wherin those other words are inserted, to-wit : 
"the late high and mighty Prince Charles, the first of that name," 
&c., it was one of those laws which were passed by the assembly in 
Maryland in April 1650, when the people there knew of the late 
king's death, to-wit : a year after the other law above mentioned, with 
divers others which were enacted in April 1649 as aforesaid, though 
in the ingrossement of them all here (when the Lord Baltemore gave 
his assent to them altogether in August 1650), it is written before it 
because they were transposed here in such order as the Lord Balte- 
more thought fit, according to the nature and more or less importance 
of them, placing the act concerning religion first, &c. And as to 
those words " the first of the name," &c., the word first doth not ne- 
cessary imply a second, as some infer upon it, no more then when the 
first-born of thy sonnes were commanded to be given to God did im- 
ply a second, which was performed though there wore never a second. 
The word first hath relation to the time past, and not to the time to 
come. King James is stiled in history James, the first of that name, 
king, &c., though there were never a second of that name king of Eng- 
land, &c. And it is usually written and said that a king died in the first 
year of his raign, when he lived not to enter into a second; the like 
whereof may be made out by many other instances. And as the Lord 
Baltimore is confident the assembly in Maryland had no intention by 
those words "Charles, the first," &c., to infer a second king of that 
name, no more had he, in his assent to that law, any such thought or 
meaning. And the comportment of him and his officers in Maryland, 
above mentioned, towards the parliament and their friends, doth suf- 
ficiently confirme it. 

Among other privileges granted to thoL. Baltemore and the inhabi- 
tants of Maryland by his said patent, one is (by an express clause 
therein inserted) that the said province should not from thenceforward 
be or be reputed any part of Virginia, or bee dependant or subject to 
their government in anything (although the government of Virginia 
was then immediately in the king's hands), but was by the said patent 
(in express words) separated from it; and so it hath been ever since; 
which was one of chiefest incouragements, upon confidence whereof 



112 

the L. Baltemol'e and others adventured so great a part of their estates 
thither as aforesaid. For it was the privileges and immunities, and 
not the land only, granted by the said patent which did chiefly induce 
the Lord Baltemore to make so great an adventure, without which he 
would not certainly, upon the conditions of a common planter, have 
disbursed anything upon a plantation in America. Wherefore he 
hopes the parliament will not thinke it just or fit to deprive him and 
the inhabitants of Maryland of so important a priviledge (which is 
their inheritance, and dearly purchased by them), by putting them 
now under the government of Virginia, uj)on colour of any articles 
agreed on when the Virginians were declared enemies of the common- 
wealth; and the rather because, even in point of policy also (as is 
humbly conceived), for certain reasons of state hereunto annexed, it 
will be more advantageous to the honour and intcest of this common- 
wealth to keep those two governments still divided, and to preserve 
and to protect the Lord Baltemore's rights and priviledges aforesaid 
in Maryland, than to destroy either of them. 

Reasons of State concerning Maryland in America. 

1. First. It is much better to keep that government still divided 
from Virginia (as it has been for these twenty years last past), then 
to unite them, for by that means this commonwealth will have the 
more power over both, by making one an instrument (as occasion shall 
require), to keep the other in its due obedience to this commonwealth, 

2. Secondly. In case any defection should happen in either colony 
(as lately was in Virginia), the other may be a j^lace of refuge for 
such as shall continue faithful to this commonwealth, as Maryland 
lately was. Upon that occasion, which it could not have been, in 
case the government of that place had been at that time united unto, 
or had any dependence on Virginia. 

3. Thirdly. It will cause an emulation in both; which of them shall 
give the better account of their proceedings to the supreme authority 
ot this commonwealth, on which they both depend, and also which of 
them shall give better satisfaction to the planters and adventurers of 
both. 

4. Fourthly, The Lord Baltemore having an estate, and his resi- 
dence in England, this commonwealth will have a better assurance of 
the due obedience of that plantation, and the planters and adventurers 
thither, of having right done unto them in case the government thereof 



113 

have still a dependence on him, and he upon this commonwealth (as 
he had before on the late king), then if the government of that place, 
at so remote a distance, should be disposed of into other hands, who 
had little or nothing here to be responsible for it, and whose interest 
and residence were wholly there. 

5. Fifthly. By the continuance of his interest in the goverument, 
there of this commonwealth, and the people there, are eased of the 
charge of a deputy governor, which he at his own charge maintains; 
the inhabitants there being yet so poor (and so like to be for many 
years), as they are not able to contribute anything towards it. 

6. Sixthly. If the Lord Baltemore, should by this commonwealth, 
be prejudiced in any of the rights or priviledges of his patent of that 
province. It would be a great discouragment to others in forraign 
plantations, upon any exigency to adhere to the interest of this com- 
monwealth, because it is notoriously known that by his express direc- 
tion, his officers and the people there did adhere to the interest of this 
commonwealth, when all other English plantations, (except New Eng- 
land), declared against the parliament, and at that time received their 
friends, in time of distress, for which he was like divers times to be 
deprived of his interest there, by the colony of Virginia and others, 
who had commission from the late king's eldest sonne for that pur- 
pose, as appears by a commission, granted by him to Sir Wm. Dave- 
nant, the original whereof remained with the cancell of state, and a 
true copy thereof is hereunto annexed. 

A true copy of a commission from the late king's eldest sonne to 
Mr. William Davenant, concerning Maryland, the original whereof 
remains with the councel of state. 

Charles. R. 

Charles, by the grace of God king of England, Scotland, France and 
Ireland, defender of the faith, &c., &c., to our trusty and well- 
beloved Sir William Davenant, Knight, and to all others whom 
these presents shall come, greeting: 

Whereas, the Lord Baltimore, proprietary of the province and plan- 
tations of Maryland, in America, doth visibly adhere to the rebells of 
England, and adroit all kinde of schismaticks and sectaries, and other 
ill-affected persons, into the said plantations of Maryland, so that we 
have cause to apprehend very great prejudice to our service thereby, 
15 



114 

find very great danger to our plantations in Virginia, who have car- 
ried themselves with so much loyalty and fidelity to the king, our 
father of blessed memory, and to us, know yee therefore, That we, 
reposing speciall trust and confidence in the courage, conduct, loyalty 
and good affection to us, of you, Sir William Davenant, and for pre- 
vention of the danger and inconveniences above-mentioned, doe by 
these persons nominate, constitute and appoint you, our lieutenant 
governor of the said province or plantations of Maryland, with all 
posts, castles, plantation posts, and other strengths, thereto belong- 
ing, to have, hold, exercise and enjoy the said place, and command of 
our lieutenant governor of Maryland, during our pleasure, with all 
rights, priviledges, profits and allowances, any vvayes appertaining or 
belonging to the same; and, although wee intend not hereby to prej- 
udice the right of the proprietary in the soyle, but have for our se- 
curity thought fit to intrust you during these troubles. Wee, not- 
withstanding, give you full power and authority to doe all things in 
the said plantations which shall be necessary for our service, and for 
securing them in their loyalty and obedience to us, and prevention of 
all dangers that may arise from thence to our loyall plantations in 
Virginia. Further requiring and commanding you to hold due cor- 
respondence with our trusty and well-beloved Sir William Berkley, 
Knight, our governor of the said plantations of Virginia, and to com- 
ply with him in all things necessary for our service and the mutuall 
good of both plantations. Requiring and commanding hereby all of- 
ficers and ministers, and all others, our subjects whatsoever, of the 
said plantations of Maryland, to admit and receive our said lieuten- 
ant governor, according to this (jur commission, and to obey and pur- 
sue your order in all things, according to the authority we have given 
you; and likewise requiring and commanding our governor and coun- 
cell of Virginia; and likewise all other, our loving subjects of Vir- 
ginia, to bee aiding and assisting to you, not onely to the settling and 
establishing of your authority, as our lieutenant governor of Mary- 
land, but also in all such helps and assistances, as may be necessary 
for your preservation there, and for the mutual good of both planta- 
tions as aforesaid. 

Given at our court in Jersey the 16-60 day of February, 1650-49, 
in the second yeare of our reigne. 

Chapter 144. Virginia and Maryland, or The Lord Baltemore's 
Printed Case uncased and answered. . Shewing the illegality of his 
Patent and usurpation of Royal Jurisdiction and Dominion there. 



115 

With the Injustice and Tyranny practised in the Government against 
the Laws and Liberties of the English Nation, and the just Right 
and Interest of the Adventurers and Planters. Also, a Short Rela- 
tion of the Papists late Rebellion against the Government of his 
Highness, the Lord Protector, to which they were reduced by the 
Parliament's Commissioners ; but since revolting, and by Lord Balte- 
more's instructions caused to assault the Protestants there in their 
Plantations there — in number repulsed, some slain, and all the rest 
taken Prisoners. To which is added a Brief Account of the Com- 
missioners proceedings in the reducing of Maryland, with the Grounds 
and Reason thereof ; The Commission and Instructions by which they 
acted. The Report of the Committee of the Navy concerning that 
Province ; and some other Papers and Passages relating thereunto. 
Together with the Copy of a Writing, under the Lord Baltemore's 
Hand and Seal, 1644. Discovering his Practices, with the King at 
Oxford, against the Parliament, concerning the Londoners, and others, 
trading in Virginia. 

*' For the oppression of the poor, for the sighing of the needy, now 
will I arise saith the Lord. I will set him in safety from him that 
puffeth at him."— Psal. 12 : 5. 

London Printed, and are to be sold at the Crown in Popes, head- 
ally, and in Westminister-Hall. 1655. 



Virginia and Maryland, or The Lord Baltemore's printed Case un- 
cased and answered. 

In the year 1607, divers preceding discoveries having confirmed an 
opinion, that the country of Virginia was fit for plantation, it pleased 
God to affect the mindes of very many worthily disposed noblemen, 
gentlemen, and others, to conceive it as a matter of great religion and 
honour to undertake the work of perfecting a Christian plantation in 
those parts. Whereupon King James was pleased to become the first 
founder of this noble work. And by his letters patents, from time to 
time renewed and enlarged, granted all ample priviledges and immu- 
pities, both to those that managed in England and those that went tq 



116 

inhabit. Tiaerewith gave so an encouragement, that fifty Earls and 
Barons, three hundred and fifty Knights, and six hundred gentlemen 
and merchants of primest rank, became incorporated, and were origi- 
nally named in the letters patents, by the name of the Company of 
Virginia ; being a greater union of nobles and commons than ever 
concurred to such an undertaking. But nevertheless, partly by the 
natural difficulties incident to all new plantations, but chiefly through 
the unnatural and petty impediments arising by the cross agitations 
of two powerful factions in the company, the work went heavily on 
the first twelve years, appearing desperate in the severall ill successes 
thereof. And though afterwards somewhat advanced and prosperous, 
yet in the year 1621, by the fatal blow of a massacre, it was almost 
shattered to pieces, and brought to a very low and calamitous condi- 
tion. Which occasion the contrary faction presently took hold of, 
insomuch that they exceedingly slighted the action ; and not to cast 
aspersions on the country and on the whole management of that affair. 
And then further strongly possessed and advised, the then king, 
against the form of the companies government ; as consisting of an 
excessive number of councellors, and a confused popularity, as being 
a nurse of parliamentary spirits, and obnoxious to monarchical gov- 
ernment. Thereupon order was made upon the eighth day of October, 
1623, at the council table, whereby the company were moved to give 
in their assents for surrendering their patent and altering their form 
of government, and a new one proposed, wherein the interest and 
rights of all men should be preserved. Which order the company not 
submitting unto, a quo warranto was directed for the calling in of 
their patent, and an advantage taken upon their mispleading. The 
patent was condemned in Trinity term following. For many years 
after, not vacated upon the record in the office of the rolls, whereby 
some that fought the overthrow of the Lord Baltemore's patent for 
Maryland in the beginning of the parliament, 1640, took out the 
Virginia patent again, under the broad seal of England, therefore 
thought by primest lawyers now to be unquestionably in force, at 
least to point of interest, and that patent of Maryland unconsistent 
and void. 

Thus in brief was the late company dissolved, and a commission 
given to divers lords and others, for present directing and ordering 
the affairs of Virginia; and that they should advise, touching a bet- 
ter form of government, for advancing and establishing the colony. 
Then issued also severall proclamations and several orders from the 



117 

council tttble, with great assurances, under the broad seal and privy 
seal, that all men with the adventurers and planters, should be as- 
sured that their rights and interests should be conserved and enlarged 
onely alteration in point of government. But both that commission 
and renewing of the companies charter expired, and all those proceed- 
ings were delayed by reason of the death of King James, which then 
suddenly ensued. The principal scope of that commission was that 
they should finde a better form of government for the country's ad- 
vancement, and therein was especially promised the conservation of 
every man's right intentions, worthy of the wisdom and justice of so 
great a prince. But nothing was done by those commissioners, touch- 
ing either of those ends, not by those by whose prosecution these 
things liapned, who having attained their private ends of spleen and 
profit Upon the changes and revolutions of ensuing times, deserted 
the interest of the colony, and left her, weltering in her blood, unsup- 
plied with ammunition and arms, in the heat of a difficult war with 
the Indians, th'^ burthen and charges whereof was onely undergone 
by the remaining planters, who were then forsaken by their former 
friends, were constrained both to work and fight for thei»- lives and 
substance, and thereby preserve the colony from desertion, and at last 
restored it, by the blessing of God, to peace and plenty. 

And then about the year 1633, Lord Baltemore pretending, though 
not truely, the greater part of the country was emplanted, procured 
that the aforesaid judgment, so long delayed was entered, and ob- 
tained a patent ior that part now called Maryland, which he hath 
since held, with a few people, and small adventurers, hehatting of those 
to whom it belonged from planting of it. Destroying and ruinating 
those formerly seated under Virginia, at the Isle of Kent, and inter- 
dicting trade with the Indians for furs, discovered and begun by the 
Virginians, by direction and commission from the king, which since 
by this means is enjoyed by the Dutch and Swedes, with profit of 
many thousand pounds yearly; which trade had been solely in the 
English nation's hands, had not the Lord Baltemore interdicted it, 
and seized all vessels, and displanted these plantations. 

And those Swedes and Dutch do trade for great quantities of guns, 
powder and shot, with our Indians, to the total endangering this 
colony, if not timely prevented. Such a ground work, had the patent 
of Maryland, upon the rights and labours of others; and as unreason- 
able and unjust, have been the whole proceedings and management of 
their colony and interests. At their first arrival surprising and coq- 



118 

fiscating many vessels, with the goods of divers, that they found tra- 
ding with the natives, under the commissions of Virginia, which they 
had enjoyed neer thirty years. And professing an establishment of 
the Romanish religion, onely they suppressed the poor Protestants 
among them, and carried on the whole frame of their government in 
the lord proprietary's name. All their proceedings, indicature, tryals 
and warrants in his nam?, power and dignity, and from him onely, 
not the least mention of the soveraigne authority of England, in all 
their government to that purpose, forceably imposing oaths (judged 
illegal in a report made by a committee of the council of state 1652), 
to maintain his royall jurisdictions, prerogatives and dominions as ab- 
solute lord and proprietary, to protect chiefly the Roman Catholick 
religion, in the free exercise thereof. And all done by yeerly instruc- 
tions from him out of England, as if he had been absolute prince and 
king. By all which is easily evident that the "patent of Maryland" 
was grounded upon no good foundation. 

The king misinformed when in nothing more deeply and directly 
could the honour and justice of his throne be concerned then in con- 
firming and conserving the interest of so great a conjuncture of 
nobles, knights, gentlemen and merchants, who so piously and worthyly 
adventured their moneys, and expended their estates and labours ; 
whose rights and interests through their patent, were called in tor the 
time in point of government, yet had received the most solemn de- 
clarations and assurances, under the broad seal, and privy signet, 
orders of councels, letters to the colony, and by general proclamations 
there and here. 

That it was impious to think that either the then king, or King 
James, being rightly informed would ever have granted such a patent 
as this Maryland, it being ne'er two-thirds parts of the better terri- 
tory of Virginia; and as no way consistent with equity and the 
honor and publick faith of the kingdoms, so was no way agreeable 
(in the absolute and regal power assumed and executed by him) to 
the late monarchical government, or to the present authority of the 
commonwealth of England, under his highness the lord protector; 
and most injurious to the rights and interests of the noble adventur- 
ers, and the painful indefatigable planters, who had so long under God 
concerved Ihe country from total ruine. 

A short and successive narration, of most of the aforesaid publick 
assurD,Dces, follows, viz : 



119 

1. By an order of the council the eight of October, 1623, before 
the quo warranto brought to arm the minds of the adventurers and 
planters, against any mistaken fear and apprehension as if their es- 
tates should receive prejudice. 

2. And whereas the lords of the council were informed that the in- 
tended change of the government had begot a general discouragement 
amongst the adventurers, notwithstanding sundry other declarations 
made at the board, viva voce, and that former act of councel. Their 
lordships were pleased by an order of the twentieth of October, 1623, 
to declare again that there was no other intention, but onely and 
meerly in reforming and change of the present government; and that 
no man should receive any prejudice, but have his estate fully and 
wholly confirmed, and if in anything defective, better to be secured. 
Which order was sent over by their lordship's command, and published 
in Virginia for encouragement of the planter. 

3. King James was also pleased to express the same in his commis- 
sion to sundry of his own privy councel, and other commissioners, for 
the time being, for the affairs of Virginia, July 5, 1624, that his in- 
tention was to alter the letters patents as to the form of government, 
but with the preservation of the interest of every adventurer and 
planter. 

4. The like declaration of the king's intention was exprest in the 
commission then sent to Sir Francis Wiat and the councel then ap- 
pointed by his majesty to direct the affairs and people in Virginia; 
and the like hath been inserted in all King Charles' commissions, and 
of all th'3 governments of Virginia that have been since that time to 
this present. 

5. The said King Charles, by his proclamation. May 13, 1625, de- 
clared that his aim was onely to reduce the government in such a right 
course as mio;ht best agcree with the form held in the rest of his mo- 
narchy, and not intended to impeach the interest of any adventurer 
or planter in Virginia. 

6. The lords of the councel, by the letters dated the 24th of Octo- 
ber. 1625, declare to the colony, that the king's pleasure was to pre- 
serve every man's particular right, and the planters to enjoy their 
former priviledges with addition of other requisite immunities, en- 
couraging also the planter to discoveries, both by sea and land, and to 
perfect the trade of furs; which letter, according to their lordships' 
command, was published in Virginia. But Captain Clayborn, who 
was thereupon employed by commission from the governor, under the 



120 

king's broad seal atid seal of the colony, and then discovered those 
parts of the trade of Maryland, was thereby utterly undone, sup- 
planted and expelled by the Lord Baltimore. 

7. The king also, for the encouragement of the planters, by his 
royal letters the 12th of September, 1628, was pleased to promise to 
renew and confirm unto the colony, under the great seal of England, 
their lands and priviledges formerly granted to them. 

8. And when the generall assembly, consisting of the governors and 
burgesses of the whole colony, complained to the lords of the council 
of the interrupting of their trade by the Lord Baltemore's deputies, 
their lordships were pleased, by their letter July 22, 1634, to signifie 
that the plantation of Virginia should enjoy their estates and trade 
with the same freedom and priviledges as they did before the recalling 
of their patent. 

By all which it appears, that howsover the government could not 
be reduced from that popular form of the company in England, but 
by revocation of the patent itself; yet in respect of both those kings' 
declarations, and the lords' orders, the adventurers and planters of 
Virginia, as to their rights and priviledges, according to the rule of 
equity, remain in the same condition as if no such judgment had 
been given. 

Object. But they answer hereunto to this effect, though not truely 
neither : That the Lord Baltemore's patent takes in no part that the 
Virginians had then planted, and so the interests of all men is pre- 
served; and that Maryland is no other than a particular plantation, 
as the company used to grant to divers adventurers and planters, 
and the king might do as much as the company while they stood. 

Answer 1. We reply: That the adventurers and planters were en- 
couraged to expend their estates in so vast a proportion, and to hazard 
their lives in all extremities, always accompanying new designs and 
beginnings, in hope that their shares, upon the division of lands, be- 
ing four hundred miles along the seashore, and into the land from sea 
to sea, would recompence them and their heirs, as in Ireland hereto- 
fore and now is done. But this interest, by the patent of the Lord 
Baltemore's, comprehending neer two degress, which is an hundred 
and twenty miles, is wholly taken from them, and scarce is there any 
room for any adventurers to take up any land due unto them. 

It is truely answered, that all the adventurers of the company were 
tenants in common to all the land which was not actually divided and 



121 

set out, and their claim cannot be justly thus nullified, and yet their 
interest said to be reserved. 

3. It is granted that the Lord Baltimore may have as large a propor- 
tion of laud as ever was granted to any by the company, though his 
adventurers have never been proportionable to some men's. But we 
think it agreeing to reason that he should people it, and either show 
his right to it by the adventure of people sent over to plant it, which 
was by the company appointed to be fifty acres to every person trans- 
ported thither. Otherwise, how unreasonable is it, he should possess 
two-third parts of the bay of Virginia, which may perhaps be said to 
be as big as the kingdom ot England and Scotland, and yet now in 
many years, have not more men there, except such as have gone from 
Virginia than can or do plant as much as is contained in a small 
corner thereof, and those chiefly employed in tobacco. And the great 
name of Maryland is but in effect made a factory for trade; ammuni- 
tion and arms being as commonly sold to tlie Indians (though not al- 
together so openly) as among the Swedes and Dutch. A nursery for 
Jesuits, and a bar to keep off other planters from the greatest part of 
the countrey left void, and for the most part, not known by him or 
his. 

5. We say, that after we had discovered and brought the Indians of 
those parts of Maryland to a trade of corn and beaver, by virtue of 
the king's instructions, under the broad seal of England, with the ex- 
pense of our blood and estates, and exercised annual intercourse with 
them above eight and twenty years. How can it be said our interests 
and rights are preserved, when we are forbidden this trade. Oar men 
slain, vessels and goods seized, persons imprisoned, and the whole 
trade assumed onely to the Lord B;iltimore's use, and he not able to 
manage it either, but l^ft it to the Swedes and Dutch. 

6. And chiefly we answer. We claim right by possession, having 
planted the Isle of Kent almost three years before ever the name of 
Maryland was heard of, and burgesses for that place sitting in the as- 
sembly of Virginia. Whereby it is evident the Lord Baltimore's sug- 
gestions to the king, mentionnd in his patent, that those parts were 
uncultivated and unplanted unless by barbarous people, not having 
the knowledge of God, was a misinformation, and by it, that patent 
appears to be surreptitiously and illegally gotten ; and if the Lord 
Baltimore takes away those lands from them who have also purchased 
the interest of the natives (a right not inconsiderable), and seized 
their goods, and that in a hostile manner as he hath done, how can it 

16 



122 

be said that those men's interests and rights are preserved ? They be- 
ing the first discoverers of that ishxnd, by virtue of the king's com- 
mission, and planted there under the government of Virginia, on the 
confidence, they apprehended, from the former assurances. And these 
began in great part the trade of furs. 

How unjust an intrusion, then, will the Lord Baltimore's patent 
appear, which overthrows the interests of so many and such persons? 
For the company of Virginia were of a nature diversified from other 
companies, which, if it had not been founded on so good grounds, yet 
their zeal and pious endeavors to propagate the true Christian reli- 
gion, enlarge the English dominions, and to increase the trade and 
strength of shipping, and considerably the customers, do deserve justice, 
with addition of reward for so honorable and good intentions. In the 
next place, to prove the Lord Baltimore's usurpation of royal jurisdic- 
tion and dominion in Maryland, as absolute lord proprietary, there 
needs no more than his commissions and processes, running on this stile, 
viz : We, us, and, given under our hand and greater seal of arms, in 
such a year of our dominion, etc. The oath also that he tenders to all 
his subjects and the inhabitants, such being the very words thereof, as 
by the oath itst^lfe, copied from his own hand, and herewith published, 
appears. This is surely incompatible to the English nation, that 
there should be any such principality erected over them. Whereas 
the books of law teach us, that all writs, executions and commands, 
ought to be done in the name of the supreme authority onely ; and is 
so appointed by the late platform of government, for all the dominions 
of the commonwealth, of which this is a part. And by a late ordi- 
nance declaring treason upon such penalty, that none ought to exer- 
cise any power but in the Lord Protector's name ; and these men 
acting so wilfully, cannot excuse themselves. By the ancient English 
laws, all those pleas that concern life and member and pardons, cannot 
be done in the name of any inferior person, and all writs, indictments 
and process, as heretofore, so must now only be in the name of the 
Lord Protector, and not in the name of the Lord Balteraore, as he 
hath assumed in Maryland. And whereas, the Lord Baltemore pre- 
tends to the like priviledges, as in the county palatine of Duresme, 
even those priviledges of Duresme, and all the other county palatines 
of England, were, and are taken away, as dishonourable and incon- 
gruent to the English nation, by the statute of the 27tli Hen., 8, 25. 
With what strange confidence then doth the Lord Baltemore publish 
to the world, that these royalties and priviledges are warranted by his 



123 

patent ; when as they are contrary to law and to the government now 
established under his Highness, and to a clause in his patent, wherein 
it is provided, that no construction be made thereof whereby the 
o-overnment in the commonwealth of England should suffer any pre- 
judice or diminution. 

Whereby it appears there was as good cause to reduce Maryland as 
Virginia. The people and general assembly thereof, also complaining 
of their grievances, among many other exorbitant usurpations of Lord 
Baltimore's over them, as appears by their complaint in Governor 
Green's time, made and recorded there by a committee of that as- 
sembly. But 'tis known that Governor Green was deposed by Lord 
Baltemore for suffering that committee, and not for proclaiming the 
King's son, as he alledgetb, when no such thing appears in rerum 
natura, nor no word in all his many instructions of the parliament, 
much less of his pretended affection to them, or their friends, but 
clean contrary. And 'tis notoriously known, that all the Lord Balte- 
more's governors usually took the king's part against the parliament, 
and his brother, Mr. L. Calvert, his only governor, while he lived 
there, ever declared himself against them. And to evince this irre- 
irageably, and clearly to demonstrate the management and complexion 
of this business, both Lord Baltemore himself and his brother, by 
long solicitations at Oxford, procured and sent over in Anno 1644, 
commissions in 1644, King's broad seal, to surprise the parliament 
and London ships in Virginia, and to impose customs, raise regiments, 
and fortifie the country against the parliament ; which appears by 
several writings under the Lord Baltemore's hand and seal, (one of 
which is hereunto annexed.) They did with zeal proclaim the King's 
son, Charles the Second, in Maryland, and some that read it, and 
assisted therein, of the primest rank, are stiH continued councellors 
by him, and never a word of blame. Whereas 'tis evident his own 
interest is more thaii circumspectly watcht over and contended for. 
How can he pretend that his governor. Captain Stone, bare any affec- 
tion to the parliament, when without check, from himself, in their 
assemblies, laws, he used the name of King, and His Majesty, and of 
Charles the First, when the Second was proclaimed there. And why did 
Lord Baltemore, himself, in England, advisedly consent, and approve 
those laws in terminis, under his hand, in 1650, if such had not been his 
own thoughts toward the parliament. The commissioners that were 
employed by the parliament to reduce Virginia, Anno 1652, were 
commanded to reduce all the plantations, in the bay of Chesapeak, 



124 

and then that all writs should issue in the name of the keepers of the 
libertie of England. They saw not how they could decline this ser- 
vice, well knowing how contrary to those commands, and the honor 
and interests of the parliament, the government of Maryland was ex- 
ercised, and think strange any should pretend assistance, and supply 
of victuals from Maryland to that fleet, when no such thing ever was. 
That the parliament ships were entertained there in his harbors, when 
as never any of them came at Maryland, nor within near 100 miles 
thereof, save only the Ginny frigate, who went thither, to reduce that 
province. They knew his governor had always borne affection to the 
king's side, that Charles the Second (hath been said), was proclaimed 
there; that the council were all Papists, or indifferently affected, and 
that they refused to govern the people, by the laws of England (an- 
other clause in the parliament's commission), to which several of their 
actings, and even Lord Baltemore's instructions were contrary, as in 
this particular, and many others, appears by the reports of the com- 
mittee of the navy and the council of state, to whom the parliament 
referred this cause. A copy of which report is hereunto annexed. 
And they ruled in Maryland in such an absolute way and authority, 
as no Christian prince or state in Europe exercises the like. 

His governor has an absolute negative voice in all things, and in 
the assembly of the Burgesses, calls into the upper house (as he term 
it), whom he will, to over-vote the rest. Places and displaces whom 
he will in that council, and the Lord Baltemore .himself, though in 
England, appoints all officers, even to the meanest degree, and who 
flatter him most are sure to have it. His mandates are sent over, to 
stop justice, and the judges imprisoned for proceeding according to 
justice. Writs are given out under the governor's hand, in his own 
case, without any judgment of court, to seize men's goods into the 
governor's hands. His governors are not finable for any just debts, 
and so they usually exercise their priviledges, even to the oppression 
and discontent of the people. No appeals allowed from their courts, 
though consisting but of two men (and those perhaps of no great 
knowledge or skill in government), no not to the general representa- 
tive assemblies. It would be infinite to rake in this dunghill, but all 
indifferent men, that have lived, and been there, know these things to 
be sad truths. And surely not without cause, have the general as- 
semblies there, most of the councel, and the freemen been often con- 
testing with the Lord Baltemore's governors about these things, and 



125 

yet could never obtain any redress from him, but have resolved to pe- 
tition the state of England. 

Why, therefore, should Maryland, so ill founded, and so ill man- 
aged, be wrung from the right of Virginia, against all law and equity, 
as is before truely set forth? and be established to Lord Balteraore 
to possess a professed rescusane, as his published book intimates; who 
hath in effect made it a subject of his own domination and tyranny 
(being his main aim). But to colour it and the better to get friends, 
first made it a receptacle for Papists, and priests, and Jesuits in some 
extraordinary and zealous manner, but hath since discontented them. 
Many times and many wayes, though intelligence with bulls, letters, 
&c., from the Pope and Rome, be ordinary for his own interest, and 
DOW admits all sorts of religions, and intended 2,000 Irish, and by 
his own letters c'cears and indemnifies one that said. Those Irish 
would not have a Bible in Maryland. 

His country, 'till he employed Captain Stone, never had but Pa- 
pist governors and councellors, dedicated to " St. Ignatius," as they 
call him, and his chapel and holyday kept solemnly. The Protestants, 
for the most time, miserably disturbed in the exercise of their reli- 
gion, by many wayes plainly enforced or by subtil practices or hope 
of preferment, to turn Papists, of which a very sad account, may 
from time to time be given, even from their first arrival to this very 
day. 

Virginia hath used all good neighborhood towards them, without 
which assistance and supply, even of all things, they could not have 
subsisted; for their numbers were inconsiderable and their adventurers 
small and very little, after the first ship, in comparison of such a work. 
And though Lord Baltemore pretends great adventures with his friends 
thither, yet none have appeared there to any considerable value from 
him for many years; only what merchants and some few have done 
upon returns of tobacco and beaver. So that, in truth, it will ap- 
pear, and that by his own letters, too, Maryland hath been chiefly 
planted by Virginia from first to last, and by people from thence want- 
ing seats in their narrow limits, Maryland taking away above half 
the country which (as hath been said before) was onely discovered 
by Virginia, with continual trade and abode of people there for above 
20 years, by commissions and warrants in the king's name, and was 
planted by Colonel Clayborn, under Virginia government, some years 
before ever the name of Maryland or Lord Baltemore was ever heard 



126 

of there; which himself knew, though he misinformed the king, and 
obtained his patent upon pretence of unplanted phices onely. 

But the many illegal executions and murthers of several persons at 
the Isle of Kent, by the Lord Baltemore's commands and his officers; 
the imprisonments, confiscations of many men's estates, and of widows 
and orphans, to the destruction of many families there; especially his 
seizure of Captain Claiborn's estate, though out of his patent, because 
jdanted to the value of 6,000 pounds, with the great tyranny and 
wrong done there, although the then king declared and commanded 
the contrary, but was disobeyed by the Lord Baltemore's agents, are 
too long to be inserted here. 

Many inconveniences and losses hath Virginia suffered by Mary- 
land, of which the continual invitation and entertainment of run 
away servants, and protecting fugitive persons and indebted, is not 
the least. But, above all, it is easie to be made appear that the Lord 
Baltemore hath continually, ever since their seating there, interposed 
in the matters of government in Virginia by the potency of his friends 
in the late king's court, both by placing and displacing the governors, 
councellors and supreme officers, as they stood affected or were dis- 
pleasing to him. 

Mr. Bennett and Captain Claiborn, being two of the commissioners 
that were employed by the parliament to reduce Virginia and Mary- 
land, are strangely taxed by Lord Baltemore for being his declared 
enemies; indeed, it seems for thire service to the parliament, he is be- 
come implacable towards them; though Captain Curtis, another com- 
missioner, now in England, and all Maryland, can testifie how unwill- 
ingly and how tenderly they did anything there, and how much they 
desired and endeavored to have declined any alteration of either Cap- 
tain Stone, the governor, or the council, would they have issued out 
writs in the name of the keepers of the liberty of England and have 
promised to govern according to the laws of England, both of which 
they refused under their hands, and the commissions being sent to 
Maryland is since owned by the report of the committee of the coun- 
cil of state, and the Lord Baltemore taxed and blamed for not issuing 
out writs as they required them; and therefore seems a bold aspersion 
for the Lord Baltemore to publish that Maryland, being struck out 
of their commission, was afterwards, by some mistake, put into the 
commission the second time; and, as strange as it seems, that now, 
since the reduction of Maryland, the Lord Baltemore, in opposition 



127 

and contempt of the supream authority of England, should cause 
his governor and council most falsely and rebelliously to revolt 
and recede from the same, and give instructions under his own 
hand, as he had lately done, to issue out all writs and pro- 
ceedings, in his own name onely, which they have accordingly 
done, and not the least mention of the lord protector's name in 
all their government. This the said commissiuners, though they re- 
ceived confirmation of their commission from the parliament, under the 
seal (the original, the first time miscarrying), yet bore with a long 
time, onely by letters out of Virginia admonished Capt. Stone, and 
that council, of their error, and protested against their actings, but 
they continued obstinate. The commissioners were desirous still to 
expect and attend a settlement and determination out of England, 
and to intermeddle as little as they coukl. But above a year since 
Lord Baltemore sends over instructions, and commands, to Captain 
Stone and his new-made council, all our werst Papists, or indifferent, to 
seize the lands and estates of all such as would not take the oath of 
fidelity (as he stiles it) before specified. But the people of Maryland 
generally abhorred this oath, and justly, as is conceived ; especially 
those of Patuxent and Severn declined to take it as being against 
their engagement, incompatible with their subjection to the common- 
wealth of England, and incongruous to swear to serve two absolute 
superiors. Whereupon Capt. Stone and his council proclaimed them 
seditious and rebels to Lord Baltimore, and forgot not to include the 
two commissioners, though in Virginia, under the same name with 
other opprobrious terms; whereupon the people of Patuxent and Sev- 
ern and Kent, often and earnestly apply themselves, if possible to have 
relief from those commissioners; yet they still desirously forbore to 
intermeddle, hoping it would be done out of England, until after 
many solicitations Mr. Bennet and Captain Claiborne, with only two 
men, in July last, went thither in a boat, yet using all fair means. But 
how ill they were treated for their moderation, intended to be surprised 
by night and made prisoners, and how they were necessitated to pre- 
vent greater mischief, and the present ruin of hundred of families, to 
interpose, to have that oath suspended, and the government managed 
in the lord protector's name (which being denied, to avoid bloodshed, 
they re-assumed the government out of those hands that so ill man- 
aged it, and placed it in others for the time being, under his highness 
the lord protector, until he should please to signifie his further pleas- 
ure), will appear in a declaration then and herewith published; to • 



128 

gether with the people's petition, the commissioners* answer thereunto, 
and an order for setting the government in the hands of Cap't Wil- 
liam Fuller and others. 

The Loid Baltimore, also, since gives particular commission and 
command to seize the persons of those commissioners, under his hand 
and seal, dated in November last; and for their service to the lord 
protector, to proceed against them, as abettors in mutiny and sedi- 
tion; chides and upbraids Captain Stone for cowardice, provokes him 
to fighting and bloodshed (a course too often acted in Maryland); ap- 
points another governor, in case he decline it, and yet sends no revo- 
cation of the commissioner's reducement, though he acknowledges he 
sought it earnestly of the lord protector, but could not obtain it; yet 
to blind and delude Captain Stone and his council, there came over a 
letter of recommendation from his highness, of one Captain Barber, 
and by what practise or mistake it is not known, a superscription 
thereon to Capt. Stone, governor of Maryland, and by this (together 
with a copy of that petition of the merchants and others trading 
to Virginia, brought in by Mr. Eltonhead, and sent over by Lord 
Baltemore), Captain Stone and all Maryland foil to arms and dis- 
arm and plunder those that would not accept the atoresaid oath. 
A part of them at last stood upon their guard onely sought Capt, 
Stone to shew his commission, and they would submit. He caused 
to imprison their messengers, and being of far greater number, 
assaulted them at their houses, threatened to have their blood, 
called them roundhead, rogues and dogs, brought whole bagsfuU 
of chewed bullets, rolled in powder, saying, the devil take him 
that spares any, and so falls on, upon the day dedicated to the 
Virgin Mary, with the word. Hey for St. Mary. But the Protec- 
tants command their men not to shoot upon pain of death ; until 
some being slain by a volly of shot from the Marylanders, they de- 
fended themselves, and God confounded Capt. Stone and all his com- 
pany before them : there were near double the number in prisoners, 
to the victors, twenty slain, many wounded, and all the place strewn 
with Papists beads, where they fled ; but the proceedings thereof, and 
how the arm of the Lord was revealed, and his mighty power mani- 
fested even to admiration, together with the success and the evils 
drawn upon themselves, appears by the relation thereof, at this time 
also published by a messenger from thence. 

The Lord Baltemore pretends in print his entertainment in Mary- 
land of the parliament friends thrust out of Virginia ; but those very 



129 

men whom he so stiles, coming thither, being promised by Captain 
Stone, he would decline urging the oath upon them, complain of it to 
the parliament, are in answer thereunto vilified by Lord Baltemore, 
and publickly taxed for obscure and ftictious fellows, and in his later 
letters termed the basest of men, and unworthy of the least favor or 
torbearance. Such advantages doth he make on all sides, at such a 
distance, and in such incomposed times, that he confidently takes the 
liberty to aver such extreme and contrary things, which amaze other 
men that see them. The place, as himself confessed, had been de- 
serted, if not peopled from Virginia. He might with more reason 
scruple to supplant the rights of the most considerable conjuncture of 
worthy men that ever undertook such an adventure as plantation out 
of England, which hath been the beginning and parent of all the 
rest. 

The late King James revoked the Virginia companies patent for 
denying him to alter the government, for which he had fundamentally 
provided, to give instructions from time to time ; and was the same 
which the last king did by his commission to Sir William Davenant, 
of which the Lord Baltemore speaks so much, and makes such in- 
ferences as serve his own ends. But the truth is, all that can rightly 
and properly be collected from thence, is onely this, (his right to the 
soil being in express words reserved.) If the king might dispose of 
the government of Maryland, why not the parliament, as they have 
done, and why not the Lord Protector, as he hath also done. Another 
of those fundamentals was, that no Papists should be tolerated to 
remain in Virginia, but sent away, if they would not take the oath of 
allegiance, and was so practiced, that the old Lord Baltemore's re- 
fusing, stayed not in Virginia ; and hincill lachryma to all those that 
were of the councel, who with their wives and children, have not 
suffered a little for it, of which onely Colonel Matthews and Colonel 
Claiborn remain alive. His son, this Lord Baltemore, now publishes 
himself a recusant, and avers contrarily that the laws against Papists 
and recusants extend not thither, yet his patent says, no interpreta- 
tion shall be admitted thereof, by which God's holy and truly Chris- 
tian religion, or the allegiance due to the successors of the State of 
England should suffer any prejudice or diminution. 

By all which surely its most evident. This county palatine, armed 
and coveted by him, appears disagreeable to law, and to his own 
patent, and as a monster unlike the rest of the dominions of the com- 
monwealth of England, and contrary to the late platform of govern- 
17 



130 

ment under his Highness, the Lord Protector. Yet hath he omitted 
no means to inforce his dominion on those men, that are most un- 
willing to submiL. to him, as an absolute prince, and hereditary 
monarch. Neither doth that instance of the Roman commonwealth, 
in his printed pamphlet, hold ior him ; who though they permitted 
and continued many kingships over people that formerly had them, as 
is now done in Virginia among the Indians, yet he cannot show that 
ever they constituted Kings over the people of Rome, to govern abso- 
lutely over them, as this case pleads for. To have a negative voice, 
yea, and a power ad placitum in all things ; that is before specified to 
the great regret of the inhabitants, the oppression of many ; and the 
obstruction of justice, of which Maryland hath afibrded no mean ex- 
amples and complaints. 

But, although Virginia seeks the re-establishraent of her bounds, 
so often assured under the great seal of England and otherwise, yet 
to renew any such authority as this of Maryland, or that of the com- 
pany over her, she desires it not; but to be, from time to time, under 
such government as the state of England shall appoint. 



Duplicate instructions for Capt. Robert Dennis, Mr, Rich. Bennet, 
Mr. Thos. Heg and Capt. Wm. Claiboin, appointed commissioners 
for the reducemenfc of Virginia, and the inhabitants thereof, to 
their due obedience to the commonwealth of Eno;land. 

Whereas the parliament of England, by an act, instituted an act 
prohibiting trade with the Barbadoes, Virginia, antego, hath com- 
mitted to tliis council, several powers therein expressed, for thesetling, 
reducing and governing the said islands; printed copies of which act 
are delivered you. In pursuance whereof, a fleet is now set forth, 
victualled, armed and manned, under the command and conduct of 
Captain Robert, to effect, by the blessing of God, the ends aforesaid. 
And for the management of that service, you are hereby jointly nomi- 
nated and appointed commissioners; and for your better directions 
and proceedings therein, yon are to follow these instructions following ; 

Such of you, as are here, to repair on board the ships, John or the 
Gi\'\nny friggot, of the states, which of them you shiiU think fit, and 
winde and weather permitting, to sail to Virginia, as Captain Robert 



131 

Dennis shall appoint and direct. And upon your arrival in Virnjinia, 
you or any two or more of you (whereof Capt. Robert Dennis to be 
one), shall use your best endeavors, to reduce all the plantations, 
witliin the bay of Chesopiack, to their due obedience to the parlia- 
ment and the comnaonwealth of England. 

For which purpose, you or any two or more of you (whereof Capt. 
Robert Dennis to be one), have hereby power to assure pardon and 
indemnity to all the inhabitants of the said plantations, wlio shall 
submit unto the present government and authority, as it is established 
in this commonwealth. In which pardons you may make such limi- 
tations and exceptions, as you or any two or more of you (where 
Capt. Robert Dennis to be one), shall think fit. 

And in case they shall not submit by fair wayes and means, you 
are to use all acts of hostility, that lie in your power, to enforce them. 
And if you shall finde the people so to stand out, as that you can by 
no other wayes or means, reduce them to their due obedience, you or 
any two or more of you (whereof Capt. Rob't Dennis to be one), have 
power to appoint captains and other officers, and to raise forces within 
every of the plantations aforesaid, for the furtherance and good of 
the service. And such persons as shall come in unto you, and serve 
as soldiers, if their masters shall stand in opposition to the present 
government of this commonwealth, you or any two or more of you 
(whereof Capt. Rob't Dt-nnis to be one), have here the power to dis- 
charge, and set free, from their masters, all such persons so serving 
as soldiers. 

You shall cause and see all the several acts of parliament against 
kingship, and the house of lords, to be received and published, as 
also the acts for abolishing the book of common prayer, and for sub- 
scribing the engagement and all of the acts therewith delivered to you. 

You, or any two or more of you, shall have full power to administer 
oath to all the inhabitants and planters there to be true and faithful 
to the commonwealth of England, as it is now established, without a 
king or house of lords. You, or any two or more of you (whereof 
Capt. Rob't Dennis be one), have power to give liberty to the inhabi- 
tants and planters who shall have taken the engagement formerly 
mentioned, to choose such burgesses as they shall think fit, and send 
to the place you shall appoint, for the better regulating and governing 
affairs there: provided that nothing be acted contrary to the govern- 
ment of the commonwealth of England and the laws established. 

You shall cause all writs, warrants and other process whatsoever to 



132 

be issued forth as occasion shall require, in the name of the keepers 
of the liberty of England, by authority of parliament. 

In case of mortality or absence of Capt. Rob't Dennis, you or any 
two or more of you, have power to put in execution these instruc- 
tions. In case of mortality or absence of Capt. Rob't Dennis, Ed- 
mund Currie, commander of the Guinny frigot, is hereby empowered 
to act as commissioner with you, or any two or more of you; and he 
is also, in the absence of Capt. Rob't Dennis, to take the charge of 
the fleet, so far as concerns the shipping, according to the power given 
to Capt. Rob't Dennis. 

And lastly, as we doubt not but you will use your best dilligence 
and care in carrying, out of this affair of consequence, with which you 
are intrusted, and that by your good endeavors it will have a good 
issue, so the council will take the same into consideration, that respect 
may be had of your pains and travel therein, and of a recompense 
agreeable to your service, when the same shall be compleated, and 
work upon which 3'ou are employed shall be finished. 

Signed in the name and by order of the council of state, appointed 
by authority of parliament. 

JOHN BRADSHAW, President. 

Jno. Thukloe, Cler. of the Council 



Committee Navy, 31 December, 1652. 

In pursuance of an order of parliament of the 31st August, 1652, 
whereby the 4 part of the 7 and 8 articles, agreed on at James City, 
for the surrendering and settling of plantation of Virginia, with cer- 
tain parchments concerning Maryland, and the petition of the inhahi- 
tants of Virginia, are referred unto this committee to consider what 
patent is set to be granted to the said inhabitants of Virginia, and to 
hear all parties, and to consider of their particular claims, and to re^ 
port the same unto the parliament. 

This committee, upon examination of matter of fact, and hearing both 
parties and their council, do find and humbly certifie: That by a pa- 
tent dated the 23 day of May, in the 7th year of King James, there 
was granted to divers adventurers and planters, b^ the name of the 



133 

Virginia company, all those lands, countries and territories, situate in 
that part of America called Virginia, from Cape or Point Comfort, all 
along the seacoast to the Northward 200 miles, and from the said Cape 
or Point Comfort, all along the seacoast to the Southward 200 miles, 
all that space or land lying from the seacoast of the precinct foresaid 
up into the lands throughout from sea to sea. West and Northwest, 
and all the islands lying within 100 miles along the coast of both seas, 
of the precinct aforesaid, with the soyle, &c,, thereunto belonging, to 
hold to them and their heirs forever, under the several reservations 
therein mentioned. 

That the said patent was afterwards, by a quo warranto, in the 21 
of the said king's reign, repealed and made void. 

That in the 8th year of the late king, upon the humble petition of 
the Lord Baltemore that he might have and enjoy a colony or parcel 
of ground in America, then uncultivated and not inliabited by any 
save the Indians there, was, by patent dated 20 June, 8th year, 
granted to the said Lord Baltemore all that parcel of land lying in 
the part of America from the sea on the East to the bay of Chesa- 
peake on the West, extending from Watkins point to Delaware bay, 
and from Delaware bay to Portoiumack river, and so along to Wat- 
kins point, together with the islands thereunto belonging, and by the 
said patent called the province of Maryland, to hold the same as in 
ample manner as any bishop of Durham, within the bishoprick or 
county palatine of Durham, in England, heretofore ever held or en- 
joyed; and to hold the same in free and common soccage, as of the 
Castle of Windsor; reserving to the king and his heirs and successors 
saith allegiance and dominion, and two Indian arrows yearly, with 
the fifth part of all gold and silver oar found in and upon the said 
province; and also liberty for any the people of England or Ireland 
to fish, as in those seas, as in any ports or creeks of the said province, 
and to salt and cure their fish there. 

That in and by the said parts power is granted to the Lord Balte- 
more and his h^irs to make laws, by and with the council, assent and 
approbation of the freemen of the said province, or the major part of 
them, that shall concern life or member, as often as his lordship shall 
think fit, &c.; so as such laws be consonant with reason and not re- 
pugnant nor contrary, but as neer as possible may be agreeable to the 
laws of this nation. 

That by the said patent, the said province separated from Virginia, 
but by express proviso, declared to be subject and depending upon 



134 

the crown of England. And in case any doubt arise about any claim 
in the said pateot, the same were to be decided by the courts of Eng- 
land. 

It also appears by examination, taken by this committee, that Ken- 
tish island was before the date of the said patent part of Virginia, and 
planted and inhabited by Capt. Claiborne three years before the ar- 
rival of the Lord Baltemore's agents in Maryland, and that Burgesses, 
in the assembly at Jamestown, in Virginia, for the said island, and 
that the Virginians had the sole possession of the bay of Chesopiack, 
and a free trade with the Indians. 

That in the year 1633, upon the arrival of the Lord Baltamore's 
agents in Maryland, the Virginians were prohibited from trading with 
the Indians, in any part of Maryland, which formerly they had been 
accustomed. Whereupon several differences arose between Capt. 
Claiborn's men and the Lord B.'s planters. And Capt. CUiiborne 
continuins: his trade a vessell, called the Longtail, was seized upon 
by the Marylanders, and one Lieutenant Warren (with some others 
whom he sent to rescue the said vessel!), were killed by the Mary- 
landers, in that attempt in Potomoke river. That the goods of Mr. 
Harman and others were all seized by the Lord Baltemore's agents; 
and at length, after three years' suffering, Capt. Claiborn was forcibly 
disseised and dispossest of his plantation in Kentish island, and 
for his safety of his life, to fly into England, And ever since the 
Lord B. hath had possession of the said island, not suffering any of 
the Virginians to trade in the said bay without ceisure and the con- 
fiscation of their goods. 

It likewise appears unto this committee, upon a perusal of the sev- 
eral parchments mentioned, in the order of parliament; that the Lord 
B. hath constituted forms of oaths, and injoyned the taking thereof, 
by all persons, as well officprs as others, within the said province; and 
that not to the king but to himself, and that he hath issued out writs 
in his own name. All his commissions and processe running in this 
stile, (viz) : we, us, and given under our hand, and greater seal of 
arms, in such a year of our dominions over the said province. That 
he hath likewise appointed an upper and lower house of assembly, and 
also a private council of state, which is not mentioned in the said 
patent. And we further find that several of the laws, made by the 
said Lord Baltemore, are not agreeable to the laws, statutes and cus- 
toms of England, as for instance — 

That the lands, sold by the said Lord Baltemore^ are directed to be 



135 

pnrchased and held by him and his heirs, only in soccady as of the 
manor, &c. 

That the oath hereafter mentioned, must be taken by all that shall 
bear office, or shall inhabit, or come into the said province, upon pain 
of being banished, and if they return and refuse, to be subjected to 
such fine as his Lordship shall think fit. 



The Oath of the Lieutenant or Chief Governor of the Province of 

Maryland. 

I, A B, doe sware I will be true and faithful to the Eight Honour- 
able Cecilius, Ld. Baron of Baltamore, the true and absolute Lord 
and Proprietary ot this province of Maryland, and his heirs, and him, 
and them, and his, and their rights, royall jurisdictions, and seigniory, 
all and every of them, into or over the said province and islands there- 
unto belonging. Will at all times defend and maintaine, to the utmost 
of ray power, and will never accept of, nor execute any place, office or 
employment, within the said province, any way concerning or relating 
to the government of the said province, from any person or authority, 
but from or under the hand and seal at arms of his said Lordship, as 
Lieutenant of the said province, and in all other offices committed to 
my charge by his said Lordship's commission or commissions to me, 
and will willingly yield up the said commission and commissions againe, 
and all offices, powers and authorities granted, and to be granted, by 
them, or any of them, into the hands of his said Lordship, and his 
heirs and assigns, or to such person or persons, as he, or they, shall 
appoint, whensoever he or they shall appoint me or so to doe, and 
shall si<2;nifie the same to me in writing under his or their hand and 
seal at arras. And will not presume to put in execution, or attempt 
to execute, any office, power or authority granted unto me by any of 
the said commissions, after that his Lordship, his heirs or assigns, 
Lords and proprietaries, of the said province, shall repeale them, or 
any of them, respectively, by any writing, under his or their respective 
hand and seal at arms, and that the said repeal be published in this 
province. I will doe equall right and justice to the poor and to the 
rich within the said province, to ray best skill and judgment and 
power, according to the lawes and ordinances of the said province ; 



136 

and in default thereof, according to my conscience and best discretion, 
and the power granted and to be granted to me by his said Lordship's 
commission or commissions, I will not for fear, favor or affection, or 
any other cause, let, hinder or delay justice to any, but shall truly 
execute the said office, and offices, respectively, according to his said 
Lordship's commission to me, in that behalf and to the true intent and 
meaning thereof, and not otherwise, to the best of my understanding 
and judgment. I will not know of any attempt against his said 
Lordship's person or his rights or dominion, into or over the said pro- 
vince, and the people therein, but I will prevent, resist and oppose it, 
with the utmost of my power, and make the same known with all 
convenient speed to his said Lordship ; and I will, in all things, from 
time to time, as occasion shall serve, faithfully counsel and advise his 
said Lordship, according to my heart and conscience. And I do 
further sU'are, I will not by myself, or any other person, directly 
trouble, molest, or discountenance, any person whatsoever in the said 
province, professing to believe in Jesus Christ, and in particular no 
Roman Catholick, for or in respect of his or her religion, nor his or 
her free exercise thereof, within the said province, so as they may not 
be unfaithful to his said Lordship, or molest or conspire against the 
civill government established under him ; nor will I make any differ- 
ence of persons in conferring offices, rewards or favours, proceeding 
from the authority, which his Lordship hath conferred on me, as his 
Lieutenant here, for or in respect to their said religion, respectively, 
but merely as I shall find them faithful and well deserving of his said 
lordship, and to the best of my understanding, endowed with moral 
virtues and abilities, fitting for such offices, rewards, or favors, wherein 
my prime aim and end shall be, from time to time, sincerely the ad- 
vancement of his said lordship's service here, and the publick unity 
and good of the province, without partiality to any, or any other sinis- 
ter end whatsoever; and if any other officer, or persons whatsoever, 
shall, during the time of my being his said lordship's lieutenant here, 
without my consent or privily molest or disturb any person within the 
province, professing to believe in "Jesus Christ," merely for or in re- 
spect of his or her religion, or the free exercise thereof, upon notice or 
complaint thereof made unto me, I will apply my power and author- 
ity to relieve any person so molested or disturbed, or troubled, where- 
by he may have right done him for any damage which he shall suffer 
in that kind, and to the utmost of my power will cause all and every 
such person or persons as shall molest or trouble any other person or 



137 

persons in that manner, to be punished. I will faithfully serve his 
lordship as his chancellor and keeper of his great seal of this province 
committed to ray charge and custody, by his said lordship's commis- 
sion to me, to the best of my skill and understanding. I will cause 
the impression in wax of the said seal to be affixed to all such things 
as I have, or shall from time to time receive, commission or warrant, 
so doing from his said lordship, under his hand and seal at arms, and 
that it shall not be affixed to any other writing or thing whatsoever, 
directly or indirectly, with any privy consent or knowledge. I will do 
my best endeavor carefully to preserve the great seal in my custody, 
so long as it shall please his said lordship to continue me in the charge 
and keeping thereof, to the end that it might not be lost, stolen, or 
unlawfully taken from me, and thereby any other person may affix the 
impression thereof unto any writing or thing whatsoever, without au- 
thority for so doing lawfully derived, or to be derived from, by or 
under a commission or warrant under his said lordship's hand and 
seal at arms; and that I will truly and faithfully deliver up again the 
said great seal into the hands of such person or persons, as his said 
lordship or his heirs shall appoint, when his or their pleasure for that 
purpose shall be signified to me, under his or their hands and seals at 
arms; so help me God, and by the contents of this book. 



The Oath of Fidelity to the Lord Proprietor. 

I, A. B., do faithfully and truely acknowledge the right honorable 
Cecilus, Lord Baron of Baltamore, to be the true and absolute lord and 
proprietary of this province and countey of Maryland and the islands 
thereunto belonging, and I do swear that I will bear true faith unto 
his lordship and his heirs, as to the true and absolute lords and pro- 
prietaries of the said province and the islands thereunto belonging; 
and will not at any time, by word or action, in publick or private, 
'wittingly or willingly, to the best of my understanding, any way der- 
ogate from, but will, at all times, as occasion shall require, to the ut- 
most of my powers, defend and maintain all such his said lordships 
and his heirs, right, title, interest, privileges, royal jurisdiction, pre- 
rogative propriety and dominion, over and in the said province of 

Maryland and the islands thereunto belonging ; and over the people 
18 



138 

who are or shall be therein, for the time being, as are granted or men- 
tioned to be granted, to his said lordship, and to his heirs, by the 
king of England in his said lordship's patent of the said province, 
under the great seal of England, I do also swear that I will with all 
expedition discover to his said lordship or his lieutenant, or other 
chief governor of the said province for the time being, and also use 
my best endeavors to prevent any plot, conspiracy or combination 
which I shall know, or have cause to suspect, is intended or shall be 
intended against the person of his lordship, or which shall tend any 
wayes to the disinherisooi or deprivation of his said lordship or his 
heirs, the right, title, royal jurisdiction or dominion aforesaid, or any 
part thereof; and I do swear that I will not either by myself, or by 
any other person or persons, directly or indirectly, take, accept, re- 
ceive, purchase, or possess, any lands, tenements, or hereditant, within 
the said province of Maryland or the islands thereunto belonging, from 
any Indian or Indians, to any other use or uses but to the use of his 
said lordship and his heirs, or knowingly from any other person or 
persons, not deriving a legall title thereunto, from or under some 
grant, from his said lordship, or his said heirs, legally passed under his 
or their great seal of the said province for the time being; so help me 
God, and by the contents of this book. 



The oath of a Counsellor of State in Maryland. 

I, A. B., do swear that I will be true and faithful to the Right 
Honourable Cecilius, Lord Baron of Baltamore, the true and absolute 
lord proprietary of this province of Maryland, and his heirs, and 
him, and them, and his and their rights, royal jurisdictions, and 
seigniory, and every of them into and over the said province and is- 
lands, hereunto belonging. I will at all times defend and maintain, 
to the utmost of my power, and will never accept of, nor execute, any 
place, office, or imployment, within the said province, any way con- 
cerning or relating to the government, from time to time, but from 
his said lordship, or his heirs, lords and proprietaries, of the said pro- 
vince, under his or their hands and seals at arms. The peace and 
welfare of the people of this province, I will ever procure as far as I 
can; I will aid and assist the administering and execution of justice 



139 

in all things in my power; to none will I delay or deny right for fear, 
favor or affection; I will do my best skill, according to my heart and 
conscience, give good and faithful council to the said lord and pro- 
prietary and his heirs, and to his and their lieutenant and chief gov- 
ernor of this province, for the time being, when thereunto I shall be 
called; I will keep secret all matters committed or revealed unto me, 
or which shall be moved or debated, secretly in council, and faithfully 
declare my mind and opinion therein, according to my heart and con- 
science, and if any of the said treaties and council, shall touch any 
of the privy counsellors of this province; I will not reveal the same to 
him so touched or concerned, but vi'ill keep the same secret, until such 
time as by the consent of the lord proprietary or chief governor, here 
for the time being, publication shall be made thereof; I will, as a coun- 
sellor, a justice and commissioner for conservation of the peace of this 
province, do equal right unto the poor and to the rich, to the best of 
my understanding and judgment, according to the laws, from time 
to time in force, within this province, and in default thereof according 
to my best discretion; and generally in all things will do as a faithful 
counsellor, to the lord proprietary; and I do further swear, I will do 
myself, or any other person, directly or indirectly, trouble, molest, or 
discountenance any person or persons in the said province, professing 
to believe in "Jesus Christ," and in particular no Roman Catholick, 
for or in respect of his or their religion, nor in his or her free exercise 
thereof, within the said province, so as they be not unfaithful to his 
said lordship, nor molest or conspire against the civil government, es- 
tablished under him. So help me God, and the contents of this book. 

That whoever shall call any one an idolater. Popish priest, Jesuite, 
Jesuited Papist, &c., to forfeit ten pounds; and that no Papist shall 
be troubled for exercise of his religion, so as they be faithful to his 
lordship. 

Whosoever shall be accessary to the running away of an apprentice, 
shall suffer death; but the party himself, if apprehended, to serve his 
time double. 

Whosoever shall counterfeit his lordship's seal or sign manual, shall 
suffer the loss of his hand, imprisonment during life, or pains of death, 
or confiscation of lands, or estates, or any one or more of them, as the 
governor and chancellor, and council shall think fit. 

His lordship suffers Dutch, French or Italian descents to plant and 
enjoy such equal priviledges with the British and Irish nations. 

And lastly, in one of his laws, he mentions " the high and mighty 



140 

Prince Charles, the first of that name; " and in another expresseth, 
" that none shall transport any tobacco's in any Dutch vessel, bound 
for any other port than his majestie's." 

Unto all which exceptions answer having been mado by the Lord 
BaltaEQore, which is hereunto annexed; the same is humbly submitted 
to the judgment and further direction of this honorable house. 

It hath been confessed, by the Lord Baltimore, that one Capt. 
Green, his lieutenant-governor of Maryland, did soon after the death 
of the late king, proclaim his son, Charles Stewart, king of England, 
&c.. for which his lordship saith, he did by a writing, under his hand 
and seal, (which is one of the parchments remaining with this com- 
mittee), revoke the commission granted to the said Capt. Green, and 
appointed one Stone, in his room, but there is no such cause mentioned 
in the said writing. 

It likewise appears that in March, 1651, the governor and council 
of Maryland, being required by the commissioners, that were sent 
thither, to issue forth writs in the name of the keepers of the libertie 
of England; they refused the same, saying: they could not do it with- 
out breach of their trust and oath. 



To the Honorable Eichard Bennet, and Col. William Claiborn, Es- 
quires, Commissioners of the Commonwealth of England for Vir- 
ginia and Marjdand : 

The humble petition of the commissioners and inhabitants of Se- 
verne, alias Ann Arundel county : 

Sheweth, that whereas we were invited and encouraged by Capt. 
Stone, the Lord Baltimore's governor of Maryland, to remove our- 
selves and estates into this province, with promise of enjoying the 
liberty of our consciencys, in matter of religion, and all other privi- 
ledges of English subjects; and your petitioners did, upon this ground, 
•with great cost, labor and dangei, remove ourselves, and have been at 
great charges in building and clearing. Now, the Lord Baltimore 
imposeth an oath upon us, by proclamation, which he requiretb his 
lieutenant, forthwith to publish, which if we do not take, within 
three months after publication, all our lands are to be seized for his 
lordship's use. This oath w^e conceive not agreeable to the terms on 
^hich WQ pame hither, nor to the liberty of our consciences as Chris-: 



141 

tians, and free subjects of the commonwealth of England. Neither 
can we be persuaded in our consciences, by any light of God, or en- 
gagement upon us, to take such an oath, but rather humbly conceive 
it to be a very real grievance, and such an oppression as we are not 
able to bear. Neither do we see, by what lawful power, such an oath, 
with such extreme penalties, can by his lordship, be exacted of us, 
who are free subjects, of the commonwealth of England, and have ta- 
ken the engagement to them. We have complained of this grievance 
to the late honorable council of state, in a petition, subscribed by us, 
which never received any answer, such as might clear the lawfulness 
of such, his proceedings with us, but an aspersion cast upon us, of 
being factious fellows. Neither have we received any conviction of 
our error, in not taking the said oath, nor order, by that power before 
whom our petition is still depending, to take it hereafte**. Neither 
can we believe that the commonwealth of England will ever expose us, 
to such a manifest and real bondage (who assert themselves the main- 
tainers of the lawful liberties of the subjects), as to make us swear 
absolute subjection to a government where the ministers of state are 
bound by oath, to countenance and defend the Roman Popish religion, 
which we apprehend to be contrary to the fundamental laws of Eng- 
land, the covenant taken in the three kingdoms, and the consciences 
of true English subjects, and doth carry on an arbitrary power, so as 
whatever is done by the people, at great costs, in assemblies, for the 
good of the people, is liable to be made null by the negative voice of 
his lordship. But affirmative propositions and commands are inces- 
santly urged and prest, and must not be denied. 

In consideration whereof, we humbly tender our condition and dis- 
traction upon this occasion, falling upon the hearts of all the people, 
to your view and consideration, intreating your honors to relieve us 
according to the cause and the power wherewith you are intrusted by 
the commonwealth of England; rather because upon such an exigent 
as this we have none to Jlie to but yourselves, the honorable commis- 
sioners of the commonwealth of England, not doubting but God will 
direct you into what his hand and will is in this matter concerning us, 
and that you will faithfully apply yourselves to our redress in what 
is just and our lawful liberty. Which is the prayer of your poor 
petitioners. 

Swan River, the 30th of Jan'y, 1653. 

Subscribed by Edw'd Lloyd an4 77 persons of the housekeepers and 
freemen, inhabitants, 



142 

To the Honorable Richard Bennet and William Claiborn, Esquires, 
Commissioners for the Commonwealth of England within the Bay 
of Chesapick : 

The humble petition of the inhabitants of the Northside of Patux- 
ent river, in the province of Maryland : 

That being reduced by your honors from that tyrannical power ex- 
ercised over the people of this province by the Lord Baltimore and his 
agents unto the obedience of the commonwealth of England, to which 
government we have subjected and engaged, and have by your honors 
been often enjoyned real conformity and obedience to the same, and 
not to own any other power or authority, as we will answer the con- 
trary: In subjection whereunto we have had peace and freedom hith- 
erto, which with all thankfulness we cannot but acknowledge, and in 
our contined obedience do expect from the parliament, next under 
God, continued peace, liberty and protection from the pride, rage and 
insolency of their and our adversaries. 

Now so it is, may it please your honors, that of late the Lord Bal- 
timore doth, by his orders and agents, seek to set over us the old form 
of government formerly exercised by him in this province, which we 
did conceive, by the blessing of God upon your honors' endeuvors, 
had been fully made null and void. Yet notwithstanding, by the 
arbitrariness of his own will, he appoints laws for us, and sets up 
Popish officers over us, ousting those officers of justice appointed by 
you; issuing forth writs in his own name, contrary to your honors' 
order and appointment; and doth by proclamation, under his own hand 
and in his own name, impose an oath, which if refused by us, after 
three months, all our lands and plantations are to be seized upon to 
his lordship's use, and if taken by us we shall be engaged at his will 
to fight his battles, defend and maintain him in his patent as it was 
granted to him by the late king, &c.; which oath we humbly conceive 
is contrary to the liberty and freedom of our consciences as Christians, 
and contrary to the fundamental laws of England; contrary to the 
engagement we have taken in subjection to the commonwealth of Eng- 
land, and unsuitable to freemen to own any other power than that to 
which we belong, and to whom we are and have engaged; and con- 
trary to the Word of God to fight for and defend and maintain 
Popery and Popish anti-christian government; which we dare not do, 
unless we should be found traitors to our country, fighters against 
God, and covenant-breakers. 



143 

The premises considered, we humbly spread our condition before 
your view and consideration, hoping, that as you are commissioners for 
the commonwealth of England, and that power, which God hath put 
into your hands, that you will up and be doing, in the name and 
power of our God, that we be not left, for our faithfulness, as a prey 
to ungodly and unreasonable^ men, before we can make our complaint 
and grievance known to the supreme authority of England ; which 
with all readiness we shall endeavor to do by the first opportunity ; 
and from whom we do hope, and shall expect, by God's blessing, to 
have a gracious answer and suitable redress. And your petitioners 
hereunto subscribed shall pray, &c. 

Subscribed : 

RICHARD PRESTON, 
And 60 more of the House-keepers and Freemen. 

Dated in Patuxent river, and in the Province of Maryland, the first 
of March, 1653. 



An answer to the petitions lately received from the inhabitants of the 
rivers Severn and Patuxent : 

Gentlemen : 

We have lately received from you a petition and com- 
plaint against the Lord Baltimore, his governor and officers there, who 
upon pretence of some uncertain papers and relations to be sent out 
of England, but no way certified or authenticated, have presumed to 
recede from the obedience to the commonwealth of England, to which 
they were reduced by the parliament commissioners ; to the contrary 
whereof, nothing hath been sent out of England, as far as is yet made 
appear unto us. But duplicates and confirmations of the commis- 
sioners powers and actions were sent from the parliament since the 
reduction of Virginia and Maryland. Now whereas, you complain of 
real grievances and oppressions, as also of an imposition of an oath 
upon you against the liberty of your consciences, which you say you 
cannot take as Christians or as free subjects of the commonwealth of 
England. We have thought good to send you this answer. That 
because we, nor you, have as yet received, or seen, sufficient order or 
directions from the parliament and State of England, contrary to the 



144 

form to which you were reduced and established by the parliament's 
said commissioners. Therefore we advise and require you, that in no 
case you depart from the same ; but that you continue in your due 
obedience to the commonwealth of England, in such manner as you 
and they were then appointed and engaged. And not to be drawn 
aside from the same upon any pretenoe of such uncertain relations as 
we hear are divulged among you. To which we expect your real con- 
formity, as you will answer the contrary, notwithstanding any pre- 
tense ot power from Lord Baltimore's agents, or any other, whatsoever 
to the contrary. 

Your very loving friends, 

RICHARD BENNET. 

WM. CLAIBOURN. 
Virginia, March the 12, 1654. 



A Declaration published in Maryland. 

It cannot be unknown to the inhabitants of Maryland, that about 
two years since, this province was reduced and settled, under the 
obedience to the commonwealth of England, by the parliament's com- 
missioners sent thither, with special commission and instructions, to 
that purpose ; and that Capt. Wra. Stone^ Mr. Thomas Hatton, and 
others, re-assuming the power and place of governor and council here, 
undertook and promised to continue, in their said obedience, and to 
issue out all writs, process and proceedings, in the name of the keepers 
of the liberty of England, as was commanded by the said instructions 
by which Maryland was reduced, which said commission and instruc- 
tions have been since renewed, and the proceedings of the said com- 
missioners, owned by the committee of the Council of State, as by 
their order and report drawn up for the parliament may appear, 
wherein the Lord Baltimore's agents are taxed for refusing to issue 
out writs in the name of the keepers of the liberty of England, not- 
withstanding all which appearing so clear and evident. The said 
Capt. Stone and Mr. Hatton, though they continued and exercised the 
government for some time, and for divers courts, in the name of the 
keepers of the liberty of England, yet have they since, upon no good 
ground, falsified their said trust and engagement, though acted pub- 



145 

lically and after long advice and consideration ; and having rejected 
and cast off their said obedience to the commonwealth of England, 
have further refused to govern this province according to the laws of 
England, but declare and affirm a power and practice contrary there- 
unto and contrary to the late platform of government of the common- 
wealth of England, Scotland, and Ireland, and the dominion thereof; 
as namely, by the governor's negative voice in assemblies, and his 
choosing and removing counsellors at pleasure, and the like is mani- 
fest. And, whereas, we have lately received commands from his high- 
ness the lord protector, to publish the said platform of government, 
and that all writs and proceedings should be issued in the name of his 
highness, to which, though we desire this government should be con- 
formable, yet the said Capt. Stone and Mr. Hatton, having lately as- 
sociated unto them divers counsellors, all of the Eomanish religion, 
and excluding others appointed by the parliament's commissioner's, 
have and do refuse to be obedient to the constitutions thereof, and to 
the lord protector therein; and have in the name and by special di- 
rection of the said Lord Baltimore, made proclamation and exacted 
an oath of fidelity from all the inhabitants of the province, contrary 
and inconsistent to the said platform of government; which said oath, 
nevertheless, and the law here commanding the same, and many other 
laws, are likewise by the report of the said committee of the council 
of state declared to be contrary to the laws and statutes of the Eng- 
lish nation, which is an express breach of his patent. And, whereas, 
the said oath in many particulars is distasted by all the inhabitants 
of Maryland, and especially out of tenderness of conscience by all 
Northern plantations of Patuxent and Severn, who having lately en- 
gaged to the parliament of England, do say and declare they cannot 
take the said oath to the Lord Baltimore to be absolute lord and pro- 
prietor of Maryland, and to the utmost of their power to defend and 
maintain all his rights and royal jurisdictions, perrogatives, domin- 
ions, &c. Upon which, their' refusal of the said oath, the said Capt. 
Stone, by the said Lord Baltimore's especial direction, hath set forth 
a proclamation, declaring: That all such persons, so refusing, shall 
be forever debarred from any right or claim to the lands they now en- 
joy and live oh; and that the said Capt. Stone, as his lordship's gov- 
ernor, is thereby required to cause the said land to be entred and seized 
upon to his lordship's use. 

By which strange and exhorbant proceedings many great cruelties 
and mischiefs are likely to be committed, and many hundreds, with 
19 



146 

their wives and families, are utterly ruined, as hath been formerly 
done here and at Kent, though planted before the Lord Baltimore's 
claim to Maryland, with many murders and illegal executions of men, 
confiscation of estates and goods, and great miseries sustained by wo- 
men and orphans. In consideration and just fear whereof, the said 
planters of Patuxent and Severn have made their often addresses to 
us, as some of the then commissioners for the reducement of Mary- 
land; and most lamentably complain of the great danger they stand 
in of being utterly undone, and chiefly for engaging their fidelitie to 
the commonwealth and parliament of England, now devoled to his 
highness, the lord protector, their obedience and faith to both, being 
plainly repugnant to each other and inconsistent. 

We therefore, the commissioners of the parliament, having written 
and proposed to the said Captain Stone and that council, for a meet- 
ing to procure a right understanding in the matters aforesaid, and to 
prevent the great inconveniences likely to ensue. In apswer thereunto, 
though they acknowledge our lines peaceable, yet so exulcerated are 
their minds, that in the very next line they add, we in plain terms 
say we suppose you to be wolves in sheep's clothing, with many other 
following like uncivil and uncomely words and expressions. 

In contemplation therefore of all the premises we have thought fit 
to make publication hereof, and to justify and manifest our proceed- 
ings in these afiairs, lest many people may be ensnared by false and 
cunning suggestions and pretences as lately hath been practiced herein, 
the falsitie whereof time hath sufiiciently demonstrated; and we are 
ready to give further satisfaction for the truth of any of the particu- 
lars before alledged, if any shall desire it, or repair to us to that pur- 
pose which they may securely do. 

Wherefore we advise, and in the name of his highness the lord pro- 
tector, require all the inhabitants of this province to take notice of 
the premises, and to contain and keep themselves in their due obedi- 
ence under his highness the lord protector of England, Scotland and 
Ireland and the dominions thereto belonging, of which this is un- 
doubtedly a part and ought to be governed accordingly, whereby they 
may assure themselves of the peaceable enjoyment of their liberties, 
profession of their religion, and their estates, and that they shall be 
protected from wrong and violence in what kind soever. 

Hereby also protesting against the said Captain William Stone, Mr. 
Thomas Hatton, and all others any way confederate or assistant with 
them in their unlawful practices, that they may be accountable and 



147 

answerable to God and the state of England, under his highness the 
lord protector, for all the mischiefs, damages, losses and disorders that 
may or shall happen thereby. 

RICHARD RENNET, 
WILL. CLAIRORNE. 

Dated at Patuxent in Maryland, the 15th of July, 1654. 



Captain William Stone's Resignation of the Government. 

Whereas, since the orders or directions of the commissioners of the 
state of England for the government of this province of Maryland of 
the 28th of June, 1652, I, William Stone, Esq., governor of the said 
province, was enjoyned by the direction and appointment of the right 
honorable the Lord Baltimore, lord proprietary of the said province, 
to issue out all writs and processes within this provioce, in this the 
said lord proprietarie's name, and to admit of those of the council 
which were appointed by his lordship, and no other. And whereas, 
upon my compliance with his lordship's commands therein, not any 
wayes contradictory, so far as I understand, to any command of su- 
p7'eam authority in England. The said commissioners in pursuance 
of their declarations lately here published, have threatened and gone 
about, by force of arms, to compel me to decline his, the said lord pro- 
prietarie's directions and commands before mentioned; which, in re- 
gard to the trust reposed in me by his said lordship, as governor here 
under him, I conceive I was engaged not to do. I have therefore 
thought fit for prevention of the effusion of blood and ruin of the 
country and inhabitants by an hostile contest upon this occasion, to 
lay down my power of governor of this province, under his lordship; 
and do promise for the future to submit to such government as shall be 
set over us by the said commissioners in the name and under the au- 
thority of his highness the lord protector. 

Witness, my hand the 20th of July 1654. 



In presence of- 



WILLIAM STONE. 



THOMAS GERRARD, 
THOMAS HATTON, 
EDW. SCARBURG. 



148 



Order for Settling the Government of Maryland. 

Whereas, by several orders drawa up and published at St. Marie's 
the 29th of March, and the 28th June, 1652, Maryland was reduced 
and settled under the authority and obedience of tha commonwealth 
of England, as to the government thereof by special order and com- 
mand of the council of state by commission from the parliament, and 
was left in the hands of Captain William Stone, Mr. Hatton, and 
others, who were required and promised to issue out writs and other 
process in the name of the keepers of the liberty of England, accord- 
ing to the express words of the commission and instructions for re- 
ducing, settling and governing of all the plantations in the bay of 
Chesapiak to the obedience of the commonwealth of England, as in 
and by the aforesaid orders and proclamation may and doth appear. 
And whereas the aforesaid Capt. Stone, by special order and direc- 
tions from the Lord Baltamore, as it appeareth, was perswaded and 
induced to go away from the obligation and the trust reposed in him, 
by issuing forth writs and all other process in the name of the lord 
proprietary of this province, placing and displacing those of the coun- 
cil, and imposing an oath upon the inhabitants contrary unto and in- 
consistent with the said engagement and oath to the commonwealth 
of England, upon the penalty and forfeiture of the lands of all such 
as should refuse to take the same within three months after publication 
thereof, which were then to be entered upon and seized to his lordship's 
use; thereby occasioning great discontent and disturbance among the 
inhabitants, besides the irregularity and cruelty of the said proceed- 
ings, and the opposition, contempt and rebellion therein to the com- 
monwealth of England and his highness the lord protector. And 
further, whereas by a late proclamation dated the 4th of this month, 
published in this province, both the commissioners of state and the peo- 
ple who adhered to this engagement to the commonwealth of England 
and refused to own or acknowledge any. other name or authority as to 
government, or to take any other oath but what they had already 
taken to that power, were charged; that they drew away the people 
and led them into faction, sedition and rebellion against the Lord Bal- 
timore; wereby not only the lands and plantations of many hundreds 
of people, but also their estates and lives were liable to be taken away 
at the pleasure of the aforesaid Lord Baltimore and his officers. By 
all which unjust and unreasonable proceedings the people were put 



149 

upon the necessity of standing upon their own defence for the vindi- 
cation of their just rights and liberties and freeing themselves from 
those great oppressions, whereby the whole province was very much 
threatened and apparently endangered. For the prevention whereof, 
and also for the relief of those who were so deeply distressed, and for 
the settlement of the province in peace and in their due obedience 
under his highness, the said commissioners, by authority derived unto 
them from his highnss, the lord protector, applyed themselves unto 
Capt. Willia»i Stone, the governor and the council of Maryland, ac- 
cording to a declaration of the 15th of this month, herewith published, 
who, returning only opprobious and uncivil language, presently mus- 
tered his whole power of men and soldiers in arms, intending to sur- 
prise the said commissioners, and, as could be imagined, to destroy all 
those that had refused the said unlawful oath and only kept themselves 
in their due obedience to the commonwealth of England, under which 
they were reduced and settled by the parliament's authority and com- 
mission as aforesaid. Then the said commissioners, in peaceable and 
quiet manner, with some of the people of Patuxent and Severn, went 
over the river of Patuxent, and thereat length received a message from 
Capt. Stone that the next day they would meet and treat in the woods. 
And thereupon, being in some fear of a party to come from Virginia, 
he condescended to lay down his power, lately assumed from the Lord 
Baltimore, and to submit (as he had once before done) to such gov- 
ernment as the commissioners should appoint under his highness the 
lord protector. 

It is therefore ordered and declared by the said commissioners : 
That for consideration of th(^ peace and public administration of jus- 
tice within the said province of Maryland, Captain William Fuller, 
Mr. Richard Preston, Mr. William Durand, Mr. Edw'd Lloyd, Capt. 

John Smith, Mr. Leonard Strong, Mr. Lawson, Mr. John Hatch, 

Mr. Richard Wells and Mr. Richard Ewen, or any four of them, 
whereof Captain William Fuller, Mr. Richard Preston, or Mr, Wil- 
liam Durand, to be always one, to be commissioners for the well order- 
ing, directing and governing the affairs of Maryland under his high- 
ness the lord protector of England, Scotland and Ireland, and the 
dominions thereof, and in his name only and no other; and to proceed 
therein as they shall see cause, and as neer as may be according to the 
laws of England, to appoint and hold courts for the due administra- 
tion of justice and right, in such places and at such time as they shall 
think fit and necessary. And any of the commissioners of the quo- 



150 

rum to issue forth writs, warrants, subpoenas, &c.; as also that they 
summon an assembly to begin on the 20th day of October next. For 
which assembly all such shall be disabled to give any vote, or to be 
elected members thereof, as have born arms in war against the parlia- 
ment or do profess the Eoman Catholick religion. And the said Mr. 
William Durand is hereby appointed to be secretary to the said com- 
missioners and to receive the records from Mr, Thomas Hatton, and 
Capt. John Smith to be sheriff for the ensuing year. 

Dated at Patuxent, in the province of Maryland, th« 22d of July, 
1654. 

RICHARD BENNET, 
WILLIAM CLAIBORNE. 



Cecilius, Lord Baltimore, to all to whom these presents oome, 
greeting : Whereas, our soverign lord, the king, by his highness com- 
mission, under the great seal of England, bearing date at Oxford, the 
28 day of February, now last past, hath authorized Leonard Calvert, 
Esquire, brother of me, the said Lord Baltimore, to treat, conclude 
and agree, and which the general assembly of the colony of Virginia, 
for and concerning the ascertaining and establishing by act of general 
assembly there, of customs and duties, to be paid to his Majesty, his 
heirs and successors in Virginia, upon exportation of tobacco and 
other goods and merchandizes from thence, and upon all other goods 
and merchandizes brought in and imported there, other than for ne- 
cessary supply for clothing imported, as by the said commission more 
at large appeareth. And whereas, by a contract or agreement in 
writing, bearing date the day of the date of the said commission, 
made between our soverign lord, the king, of the one party, and me, 
the said Lord Baltimore, on the other party, reciting the said com- 
mission hereinbefore recited, our said soverign lord, the king, for the 
considerations in the said contract or agreement expressed, is pleased 
and hath agreed with me, the said Lord Baltimore, that in case a 
certainty of customs and duties shall be established by act of general 
assembly of the said colony of Virginia, according to the tenor of the 
said commission. That then his said majesty will make a lease, or 
grant to me, and such others as I shall desire to be joyned with me, 
of the same customs and duties which shall be established as afore- 



151 

said, for such term, and under such rents and covenants as in the same 
contract or agreement are expressed. And that immediately after the 
establishing of the said customs and duties as aforesaid, and until 
such lease or grant shall be made as aforesaid. I, the said Lord Balti- 
more, and such as I shall appoint, shall be the receiver, or receivers, 
collector or collectors, of all such customs and duties, as shall be es- 
tablished as aforesaid, to the proper use of the said Lord Baltimore, 
my executors, administrators and assigns, without accompt, paying 
certain rents, salaries and entertainments, in the said contract or 
agreement expressed and mentioned. And his majesty hath, by the 
same contract or agreement, constituted and ordained me, the said 
Lord Baltimore, and my deputy or deputies, to be appointed by me, 
to be his collector and receiver of all customs and duties which shall 
become due and payable to his majesty as aforesaid as by that part of 
the said contract or agreement which is remaining with me, the said 
Lord Baltimore, being under the great seal of England, more at large 
appeareth. Know ye now, that I the said Lord Baltimore, for divers 
good causes and considerations me thereunto moving, have substituted, 
ordained, made and appointed, and by these presents do substitute, 
ordain, make and appoint , to be my deputy 

in this behalf, and do by force and vertue of the same 

contract or agreement, authorize and put the said in 

my place and stead, and to the use of me, my heirs, executors, ad- 
ministrators and assigns, to receive, collect and gather all such cus- 
toms and duties whatsoever, as in pursuance of the before recited 
commission and contract or agreement, shall be established, to be paid 
to his majesty, his heirs and successors in Virginia aforesaid, by act of 
general assembly of the said colony, and out of the same to pay and 
discharge all such rents, salaries and entertainments, as by the said 
contract or agreement are mentioned to h'i by me paid and discharged : 
rendering to me, my executors, administrators and assigns, the over- 
plus or remainder of the same customs and duties ; giving and hereby 
granting unto the said as full power and 

authority to recover and receive the said customs and duties, to be es- 
tablished as aforesaid, to the use aforesaid, when the same shall grow 
due. And to give acquittances and receipts for the same, and to sub- 
stitute and appoint one or more person or persons under him in this 
behalf, and the same to revoke at his will and pleasure, and to pay 
and discharge the said salaries and entertainments, as I myself have 
or may or might claim to have, by force and virtue of the said contract 



152 

or agreement ; and further to do, execute and finish all and every such 
further and other acts and things which shall be expedient and ne- 
cessary to be done by the said ^ touching 
the premises, by reason of his being my deputy as aforesaid, as effec- 
tually as I might do the same, being personally present. Ratifying, 
confirming and allowing all and whatsoever the said 
shall do or cause to be done in the premises in pursuance hereof. 

In witness whereof, I, the said Lord Baltimore, have hereunto put 
my hand and seal at Arms, the tenth day of April, 1644— Anno Regis. 
Carols Angl., &c., Vicessimo. 

C. BALTERMORE. 

Finis. 



No. 94. Vo). 61-96. 
At the court at Whitehall, November 19, 1675— 
Present — The king's most excellent maj'te in council. 

Whereas, the ri't hon'ble ye lords of the committee for foreigne 
plantations, did this day present to his maj'te in council a report 
touching a grant to be past unto his maj'te subjects of Virginia, in the 
words following : 

May it please yo'r maj'te, the petition of Francis Moupon, Thomas 
Ludwell and Robert Smith, agents for the governor, council and 
bugesses of ye county of Virginia and territory of Accomack, being 
by yo'r maj'te's gracious order in council of the 23d of June last past, 
referred unto yo'r maj'te's attorney and solicitor generall, who were to 
consider thereof, as also of a paper annexed, containing more fully the 
heads of what they humbly proposed, and then to report unto us 
their opinion on the same as to ye conveniency thereof in respect of 
yo'r maj'te'e service. And wee having seen and examined the said re- 
port bearing date ye 12th instant, are upon the whole matter humbly 
of opinion that it will not onely be for yo'r maj'te's service, but for ye 
encrease of ye trade and growth of ye plantations of Virginia, if yo'r 
maj'te shall be pleased to grant and confirm under yo'r great scale of 



153 

England unto yo'r subjects of Virginia the particulars following, as of 
yo'r maj'te's free grace and goodness to them : 

1. That yo'r maj'te will enable ye governor, councill andcomonalty 
of Virginia to purchase the lands, &c., contained in the grant to the 
earle of St. Albans, Lord Culpeper, and others, and as to that pur- 
pose onely, to be made a corporation to purchase and retain the same 
with a non obstante to ye statute of mortmaine. 

2. That ye inhabitants yo'r maj'te's subjects there may have their 
immediate dependance upon ye crovvne of England under ye jurisdic- 
tion and rule of such governor as yo'r maj'te, yo'r heires and succes- 
sors shall appoint. 

3. That ye governor for ye tyme being shall be resident in ye coun- 
try, except yemaj'ie, ye hieres and successors shall at any time com- 
mand his attendance in England, or elsewhere, in w'ch case a deputy 
shall be chosen to continue during the absence of such governor, in 
manner as hath bin used, unlesse ye maj'te shall please to nominate 
the deputy, who is to be one of ye councill. But if any governor hap- 
pen to dye, then another to be chosen as hath bin formerly used, to 
continue till yo'r maj'te, yo'r heires and successors shall appoint a new 
governor. , 

4. That no manner of impositions or taxes shall belaid upon or im- 
posed upon ye inhabitants and proprietors there, but by the common 
consent of ye governer, councill and burgesses, as hath bin heretofore 
used: j)rovided, that this concession be no barr to any imposition that 
may be laid by act of parliament here on the comodities w'ch come 
from that country, 

5. That yo'r maj'te, yo'r heires, and successors, will not for the fut- 
ure grant any lands in Virginia, under yo'r great seale, without first 
being informed by ye governor and council there for the tyme being, or 
some person by them impowered, whether such grant will not be pre- 
judicial! to plantations there. 

6. That all lands now possessed by the planters or inhabitants may 
be confirmed and established to them: provided, it alter not the prop- 
erty of any particular man's interest in any lands there. * 

7. That for ye encouragement of such of yo'r maj'te's subjects as 
shall from tyme to tyme go to dwell in ye said plantations, there shall 
be assigned out of ye lands (not already appropriated) to every per- 
sons so coming thither to dwell, fifty acres, according as hath bin used 
and allowed since the first plantation. 

8. That all lands possessed by any subject inhabitating in Virginia, 

20 



154 

w'ch have escheated or shall escheat to yo'r maj'te, may be enjoyed by 
such inhabitant or possessor, he paying two pounds of tobacco com- 
position for every acre, w'ch is the rate in that behalf set by ye gov- 
ernor authorized to do the same by yo'r maj'te's instructions. 

9, That ye governor and councill, or a certain quorum of them, 
may be impowered to try all treasons, murthers, felonies, and other 
misdemenors, provided they proceed in such trials as neer as may be to 
the lawes of England; the governor to have power of pardoning all 
crimes unlesse murther and treason, and in these, if he see occasion, 
to give reprieve until he shall have laid the state of the facts before 
yo'r maj'te, and received yo'r royal determination therein. 

10. That the power and authority of the grand assembly, consist- 
ing of a governor, councell and burgesses, may be by yo'r maj'te rati- 
fied and confirmed : provided that yo'r maj'te may at yo'r pleasure 
revoke any law made by them, and that no law so revoked shall, 
after such revocation and intimation thereof, from hence be further 
used or observed. 

All w'ch is humbly submitted to yo'r maj'tes determination. 



Councill Chamber, 19th October, 1675. 

His maj'te having considered ye s'd report, and being graciously in- 
clined to favor his s'd subjects of Virginia, and to give y'm all due 
encouragm't, hath thought fit to approve and confirm ye same. And 
Mr. Attorney Generall or Mr. Solicitor Generall is hereby required to 
prepare a bill for his maj'tes signature in order to ye passing of let- 
ters patents for ye grant, settlement and confirmation of all things 
according to ye direction of the said report, but varying ye words and 
manner of expression so as may be most suitable to ye formes of law in 
such cases accustomed and to ye pet'rs relief. 

^I certify that the foregoing is a true and authentic copy taken from 
the volume above named. 

JOHN McDONAGH, 

Record Agent. 
July 14th, 1871. 



155 

No. 80. 

State Papers, Colonial, Virginia, Vol. 59, No. 19. August 3, 1663. 

Charles R., trusty and well beloved : We greet you well. Whereas 
for many good services and other weighty considerations, wee did in 
the first year of our reigne, by our letters pattent, under the greate 
seale of England, (since enrolled in our court of chancery,) give and 
grant unto our rt. trusty and well-beloved Henry, Lord Jermine, now 
Earl of St. Albans, Ralph Lord Hopton, John Lord Berkeley, Baron 
of Stratton, Sir William Morton, Knt., one of our sergeants at law, 
and others, all that tract, territory or portion of land in America, 
bounded by and within the heads of Tappahannocke als. Rappahan- 
nock and Querrough or Potomack rivers, the courses of these rivers 
and Chesopacka baye, together with the rivers themselves, and all the 
islands within the banks of the s'd rivers, as in and by the s'd letters 
pattents doth or may more at large appeare, which by reason of the 
late unhappy and unsettled times they could not plant or enjoy, ac- 
cordius to our rovall intention. And whereas the said Earl of St. 
Albans, Ld. Berkeley, Sr. William Morton, and our servant, John 
Fretheroy, assignee of the s'd Ld. Hopton, (being the serviving pat- 
entees and parties interested,) have lately, since our restoration to our 
rights and governm't, granted and demised to our trusty and well- 
beloved, Sr. Humfry Hooke, Knt., John Fitzherbert, Esq're, and 
Robert Vicarridge, merchant, the s'd tract or territory, for a certaine 
number of yeares. To the intent the same may be planted and the 
Christian faith there propagated, and that our said pattentees, and 
their leassees and agents, may be by you and our councell of Virginia, 
protected and incouraged without any intention of withdrawing the 
s'd plantation from under your protection. Wee have already signi- 
fied unto you by our I't'rs, under our signe manuall, bearing date at 
Whitehall, ye 5th day of Dec'ber last past, our will and pleasure, 
that from time to time you should bee ayding and assisting to such 
persons as should bee employed by our s'd patentees and parties in- 
terested, or their s'd leassees, or any of them, tor settling of the s'd 
plantation, and receiving the rents, issues and profits thereof, may 
enjoy the benefit intended to them by our s'd I't'rs patents. And 
whereas wee are induced to believe that our s'd I't'rs under our signe 
manuall have miscarried, and not come to your handes, for that (as 
wee are informed) you have lately obstructed the proceedings upon our 



156 

s'd I't'rs pattents, and have not permitted the persons employed by 
the s'd leassees, to act in pursuance or according to the tenor thereof. 
And forasmuch as the same were granted to persons of honour and 
meritt. And for that their survivors and assignee have by their lease, 
as afores'd, impowered our trusty and well-beloved Sr. Humfry Hooke, 
Knt., and other persons of good worth, interest and quality, who in 
all probability, (if not interupted,) will in a short time settle that 
plantation for the advantage of trade and comerce, and to ye satis- 
faction of all the familyes that are there already planted. And will 
likewise cause townes to bee built, and courts to be erected, according 
to our s'd I'tres patent, for the ease and benefit of the inhabitants, 
and doe w'soever in reason may promote our service and the good and 
wellfar of our subjects in those parts. (The generality of our city of 
Bristol being, as we are informed, engaged w'th the s'd leassees in yt 
designe. Wee have therefore thought fit hereby to let you know that 
it is our royall will and pleasure, that you not only forbeare to give 
any furtlier interruption, but also upon sight hereof, restore our s'd 
I'tres patents unto the person or persons employed by the s'd Sr. 
Humfry Hooke and the other leasses, (being informed that youdetaine 
the same.) And likewise that you assist and protect them from time 
to time in carrying on that work. And that you give such encour- 
agement to them and their agents as may bee for the advancement of 
the s'd colony, and answer our expectation therein. Wee desiring 
nothing more then what may conduce to the good of our people in- 
habiting in the s'd colony, w'ch wee conceive will bee much furthered 
by that course that our s'd patentees have taken for the setlingof the 
s'd plantation in the s"d territory. And herein wee expect yo'r obe- 
dience to our coniands. Neither wee intending, nor our s'd patentees 
desiring to w'thdraw the s'd colony from under your governm't or 
appeale. And soe wee bid you farewell. Given at our court at White- 
hall, ye 3rd day of August, 1663, in ye 15th yeare of our reigne. 

By his Ma'ties comand. 

HENRY BENNET. 



Our trusty and wellbeloved the governor and councell of our planta- 
tion of Virginia. 



Inforcem't of a former L'tre to ye Governor of Virginia. 



157 

I certify that the foregoing is a true and authentic copy taken from 

the volunae above named. 

JOHN McDONAGH, 

Record Agent. 
June 27th, 1871. 



A copy of my field notes for the survey of Kapp river from Merat- 
ico creek to Charles's Beaver dam to the latitude of 38° 19' N. 
Surveyed by 

THO. BARBER, 

Survey'r of Richmond county. 

Monday, ye 30th of May, 1737. 

Began at ye mouth of Meratico creek, observation over the creek is 
S. 74°, E. to e N. 38°, E. 52 per.; thence S. 58°, E. to ye 0, distance 
across ye river is S. 75°, W. to © N. 20°, W. along ye river shore 
280 per.; then S. 50°, W. to ye ©; thence along ye river N. 52°, W. 
74 per., N. 78°, W. 128 per. to Capt. Griffin's landing, N. 49% W. 
48 per., N. 34°, W. 80 per., N. 25°, W. 66 per., N. 18°, W. 70 per. 
to ye mouth of Farnham creek, distance across N. 56°, W. to © N. 7°, 
E. 32 per., N. 77°, W. to © on ye west side the creek; thence S. 74°, 
W. 232 per.; N. 72°, W. 60 per.; No. 54°, W. 190 per. to Mr. 
Peachey's creek, N. 31°, W. 120 per. to Mr. Tho. Plummer's landing, 
N. 40=", W. 144 per. to Jackman's creek; thence N. 68°, W. 140 per. 
Mr. Suggett's bar, distance is S. 52°, W. to © N. 14°, W. 224 per. 
S. 32°, W. to © N. 14°, W. 6 per. N. 31°, W. 92 per.; N. 58°, W. 
158 per to Naylor's now Breastindines' point; thence N. 5°, E. 154 
per.; N, 28°, E. 32 per. to ye mouth of Richardson's creek, distance 
across N. 16°, W. to ©; thence N. 66, E. 30 per.; N. 34°, W. to ©; 
thence N. 45°, W. 108 per. to ye mouth of Totuskey creek, distance 
across is N. 6, W. to ©; thence N. 46, E. 40 per.; then N. 36, W. to 
©, N. 75°, W. 174 per.; N. 64°, W. 44 per.; N. 87°, W. 126 per. to 
Accotink point, distance over ye river is S. 35°, W. to ©; thence S. 
87°, E. 126 per.; thence S. 48°, to ©; thence N. 25°, E. 8 per. N. 1°, 
E. 84 per. to a small creek by Capt. Tomlin's; N. 1°, E. 46 per.; No. 
13°, E. 68 per.; N. 4°, W. 120 per., N. 37°, W. 188 per., N. 21°, W. 



158 

58 per., N. 34°, W. 228 per. to Rust's creek, distance over ye river is 
S. 35°, W. to e N. 52°, W. 238 per.; thence S. 7°, W. to N. 32 
per., N. 56, W. 80 per. to Mangoright creek, the bearings of which is 
N. 31°, W.; thence over ye creek and up ye river S. 67°, W. 86 per. 
to a cove; thence S. 69, W. 60 per., N. 87° W. 58 per. to ye point of 
marsh, distance is S. 62°, W. to N. 35° 320 per.; thence S. 19°, W. 
to e S. 87°, W. 110 per., N. 84°, W. 162 per. to a point, distance to 
hobshole is N. 86, W. to N. 15°, W. 126 per., S. 77° W. to 
thence N. 41°, W. 128 per., K 18°, W. 136 per. to island in the 
marsh, N. 47°, W. 162 per., N. 26°, E. 200 per. to ye main land 
thence N. 11°, W. 240 per. Rapp's creek, distance is W. to N. 31° 
W. 28 per. to 0; thence N. 45°, W. 116, N. 31°, W. 32 per. to Mr 
Wm. Fauntleroy inr's, N. 27, W. 200 per. to a small creek N. 69° 
W. 106 per. to Mr. William Fauntleroy landing, S. 88°, W. 126 per 
N. 83°, W. 208 per. to the point of marsh, distance across ye river is 
S. 71°, W. to N. 20°, W. 188 per.; thence S. 41°, 30, W. to N. 
5°, E. 284 per.; distance is N. 74°, W. N. 11°, W, 206 per.; thence 
S. 77°, W. to 0, distance to Payne's island creek, is — N. 75°, W. to 
© N. 42°, W. 38 per., N. 11°, W. 152 per., S. 78°, W. to © N. 3°, 
E. 50 per. to ye of ye marsh, N. 14°, W. 210 per., N. 1°, W. 166 per., 
N. 11°, W. 144 per. to the upper end Churchwell's clift, N. 22°, E. 
22 per., N. 21°, 36 per., N. 46, W. 40 per., N. 17°, W. 304 per. to 
the end of Fauntleroy clift; thence N. 3°, W. 20 per., N. 22°, W. 
154 per., N. 45°, W. 42 p^^r.. Dancing point; thence N. 24°, W. 34 
per., N. 44°, W. 46 per.; distance over the river is S. 57°, W. to ©, 
N. 58°, W. 90 per.; thence S. 6, E. to ©; thence N. 35°, W. 24 per. 
to ye Beaver dam creek, the bredtli of is 4 per. 

The distance from the upper end of the clift to the wreck of a boat 
where Mr. Warren began is N. 66°, W. to © N. 1°, E. 14 per. ; thence N. 
87°, W. to ye © at ye wreck. 

Surveyed by 

THO. BARBER, S. R. C. 



159 



State Papers— Colonial Entry Book— vol. 52, p. 221— March 12, 1691. 

Trusty and wel-beloved, wee greet you well : 

We have been infoimed by your letter of the eleaventh day of 
July last that you had received our royall commands, bearing date the 
first day of February, 1689, and given due obedience thereinto; and 
having since heard what your deeputies and agents have offeree! to us, 
we have thought fitt to take our province of Maryland^ under our im- 
mediate care and protection; and by letters pattents, under the great 
seal of England, t(» appoint our trusty and wel-beloved Lionel Copley, 
Esq'r, to whose prudence and loyalty we are well assured, to be our 
governor thereof, untill whose arriwall we do hereby authorize and 
impower you to continue in our name the administration of the gov- 
ernment and preservation of the peace and property of our subjecks 
there. Willing and requiring you to take care that one moiety of the 
impost of two shillings for every hhd of tobacco exported from our 
said province be colleck'd for the use and support of our government 
there, and to permit the duty of fourteen pence p. tun, and the other 
moiety of the said import of five shillings p. hhd to be collected and 
received for the use of the Lord Baltemore as proprietary of our said 
province, by such as shall be appointed by him to collect and to re- 
ceive the same. We have been likewise informed by the representa- 
tions that have been transmitted to us of the murder of our late col- 
lector, and accordingly directed some time past our Id. governor and 
councill of our colony and dominion of Virginia, to do all that in 
them lay for bringing the offenders to speedy justice, within our pro- 
vince of Maryland, if the fact should appear to have been comitted 
there, and in that case to take care that such of the criminals as should 
be found within that our colony should be forthwith conveyed in safe 
custody to and said province, there to receive a speedy tryall, and so we 
bid you farewell. From our court, at Whitehall, the twelfth day of 
March, 169°, in the third year of our reign. 

By her ma'ts' command. 

MOTTINQHAM. 

Certified to by 

JOHN McDONAGH, 

Record Agent. 

July 15th, 1871. 



160 

Articles of Agreement between Philip Calvert, Esq., Chancellor of 
Maryland, deputed by the Honorable, the Governor of the said 
Province, to treat and conclude upon the Bounds of the said Pro- 
vince, and Col. Edmund Scarbrough, his Majesty's Surveyor Grene- 
ral of Virginia, authorized and commanded to lay out the Bounds 
of Virginia : 

1. Imprimis. It is agreed that all persons who have surveyed, or 
patented and seated lands on the seaboard side, in the right of Vir- 
ginia, and now fallen within the divisional line, shall enjoy their said 
lands, they taking a patent from the lord proprietary of Maryland, 
and within seven years entering rights in the said provijice, and pay- 
ing the half fees to the surveyor general and full fees to the secretary 
and chancellor. 

2. Item. All such as have already patented any lands in right of 
Virginia in any other place within the line aforesaid, which is not also 
patented in Maryland, shall have the privilege in the foregoing article 
allowed, upon such terms as in the said article is expressed. 

3. Item. All such who have patented and seated lands in right of 
Virginia which do fall within the line aforesaid and are patented like- 
wise in Maryland, but not seated in the same right, shall enjoy the 
same, unless it can be proved they have seated the said lands in defi- 
ance and despite of the said gov't after warning given, provided they 
take patents, enter rights and pay fees as in the first article is agreed. 

4. Item. If any land shall chance to be patented only in right of 
Virginia, for which there is aiso a patent in Maryland, the patent in 
Maryland shall carry the land. 

In witness whereof, the said Philip Calvert and Edmund Scar- 
brough have hereunto set their hands, the 25th day of June, 1668. 

(Signed) PHILIP CALVERT, 

EDMUND SCARBOROUGH. 



Whereas his royal majesty's commission to the surveyor general of 
Virginia commands setting out the bounds of Virginia with reference 
to his majesty's hon'ble governor and council of Virginia from time 
to time to give, advise and order for directing the said surveyor gene- 
ral to do his duty appertaining to his office, in order thereunto his 



161 

majesty's hon'ble governor and council have by letter moved the 
hon'ble, the Lord Baltimore's lieu, general of Maryland to appoint 
some fitting person to meet upon the place called Watkins point with 
the surveyor general of Virginia, and thence to run the divisional line 
to the ocean sea, &c.; the Hon'ble Philip Calvert, Esq., chancellor of 
Maryland, being fully empowered by the hon'ble lieutenant general of 
Maryland, and Edmund Scarborough, his majesty's surveyor general 
of Virginia, after a full and perfect view taken of the point of land 
made by the North side of Pocomoke bay and South side of Anna- 
messex bay have and do conclude the same to be Watkins point, from 
which said point, so called, we have run an East line agreeable with 
the extremest part of the Westermost angle of the said Watkins 
point over Pocomoke river to the land near Robert Holston's, and 
there have marked certain trees, which are so continued by an East 
line running over Swansecute creek into the marsh of the seaside, 
with apparent marks and boundaries; which, by our mutual agree- 
ment, according to the qualifications aforesaid, are to be received as 
the bounds of Virginia and Maryland on the Eastern shore of Chesa- 
peake bay. 

In confirmation of which concurrence, have set to our hands and 
seals, the 25th day of June, 1668. 

(Signed) PHILIP CALVERT. [Seal.] 

EDMUND SCARBOROUan. [Seal.] 



State of Maryland, Baltimore city : 

I hereby certify that the above and foregoing two papers head- 
ed Articles of Agreement, &c., the first signed Philip Calvert and Ed- 
mund Scarborough, and the other signed Philip Calvert, seal, and Ed- 
mund Scarborough, seal, are truly copied from pages 62, 63, and 64, 
inclusive, of a bound manuscript volume labelled No. 4 state papers — 
Council Book, 1669, 1673 — Maryland Historical Society, now in pos- 
session of the commissioners on the part of Maryland to adjust and 
settle the Maryland and Virginia boundary line, and belonging to the 
archives of the state of Marvland. 

LEVIN L. WATERS, 

Sec. of Joint Comm'n. 
21 



162 

No. 137. 
State Papers— Colonial— Vol. 43, No. 240. 

Mem'd, Concerning Maryland. 

Virgiaia, first so called, is a tract of land Ij'ing from 45 to 34 deg. 
N. lat. 1607 King James granted letters pat't to Sr. Thomas Yates, 
&c., for planting this tract of land called Virginia. Which was there- 
upon divided into two colonies, the one lying from 34 to the 40 deg., 
the other from the 40 to 45 deg'r. The charter granted for the first 
colony as above said (after the peopling and planting of that whole 
country), was aftewards vacated by a quo warr'to in the year 1623. 
Whereupon, in 1632, Cecil Lord Baltimore, upon suggestions that 
there was a certain tract of land in America not inhabited by Chris- 
tians (as appears by the preamble), obtained that charter whereby 
Maryland is now held, and for the possessing himself thereof used 
great violence in driving away such of the people out of that part for- 
merly called Virginia as would not submit to his authority ; wherein 
sev'll of his maj'tes subjects were slain, as appears by the notice taken 
thereof by his maj'tes late letter to the Lord Baltimore. 

Endorsed : 

Mem'd Concern. Maryland. 

I certify that the foregoing is a true and authentic copy, taken from 
the volume above named. 

JOHN McDONAGH, 

Record Agent. 
July 15th, 1871. 



163 



DEPOSITIONS. 



At a meeting of the commissioners of Maryland and Virginia to 
settle the boundary between those two states, at the Cone hotel in Cris- 
field, May 27th, 1872, the following depositions were taken by the 
commissioners and duly sworn to: 

Travis Sterling first called and absent. 



Deposition of Isaac Sterling. 
Mr. Isaac Sterling examined by Mr. Jones. 

Age 81 last August; lived in Annamessex all my life — down below. 
His father Henry, and his grandfather John Stirling has been on 
Watts island, on Tangier and Fox island, and on the marshes between 
here and Cedar straits, and has fished all around the island pretty 
much from boyhood up. There are large pine stumps, and many of 
them arounil and between the said islands ; off West Point at Fox 
island is full of stumps; there aie large stumps all over the marsh be- 
tween here and Cedar straits, especially at Broad creek at a place 
called the Prong; there are large pine trees lying there now, from which 
I have picked off oysters My grandfather told me there was once a 
considerable island where I am told the middle ground now is in Poco- 
moke sound. At the N. headlaoA of Little Annamessex on James 
island; I, in my day, have gathered peaches from high land, near 
where the outer lighthouse now stands at the Little Annamessex bar. 
I was fishing with Nathaniel Bradshaw and old Capt. John Cullen; 
this was a long time ago, say 50 odd years ago. 



164 



Cross-examined by Mr. Wise. 

Born near Pocomoke sound, 11 or 2 miles from here, between Jen- 
kins creek and Apes hole. Hans Lawson's father, James Lawson, 
lived on the West of my birth-place. His land extended to Jenkins 
creek, which empties into Little Annamessex. Old Mr. Littleton Ty- 
lor and Tommy Nelson lived lower down South, near Pocomoke. This 
Tommy Nelson was called by the nick-name of Old King Nelson; he 
lived at a place called Matthews creek; nobody lives there now. Tom- 
ray or King Nelson's father was named Sacker or Zacker Nelson. He, 
King Nelson, was very old when he died. Michael Somers, I believe, 
pretends to own the land where King Nelson lived. King Nelson left 
children; three of his sons are dead, leaving children; they live now in 
this neighborhood. He has children living, William, daughters Nancy 
and Betsy; these three all who are living; he left a number of grand- 
children, who are now living in this neighbourhood. Never knew 
the main land at Cedar straits to be connected with Fox island. 
Fox islands were the North Fox island. Big Fox island, the Mud- 
dy marsh, and there is another across the Big Thoroughfare ; 
the Big Thoroughfare is between the South Fox island and Watts 
island. Vessels have always at high tide been able to sail be- 
tween Watts island and Fox island ; at high water, going into 
and out of the Pocomoke and Tangier sounds. Ephraim Ster- 
ling lived East of the place where I was born when I can first re- 
member. The next family East of the Pocomoke or Ape's hole side 
was old Mr. Jacob Bird; and those were the only families living on 
the sound when I can first remember. These lived near the mouth of 
Ape's hole. Old Uncle Travis Sterling lived a little higher up, I 
mean a little off the sound on the land. The peach orchard of which 
I spoke at the N. headland pf Annamessex, was not on an island, but 
was a point running out from the high land of James island. 

(Signed), ISAAC STERLING. 

Deposition of Mcf^tny Tawes. 
Mr. McKeney Taws was next sworn and examined. 

He stated ; I am in my 77th year of age ; shall be 77 next Xmass ; 
very deaf; my wife is a daughter of Thomas, called old King Nelson ; 



165 

has heard King Nelson say that his ftither, Sacker Nelson, lived on 
Fox island ; they burned his house during the revolutionary war. 
John Mason bo't from Sacker Nelson, and Middleton Mason, his son, 
lived there until within a few years past ; Thos. and John Crocket 
bo't it, and Tommy and Planner Crocket live there now ; was told 
Tommy was dead ; heard King Nelson say that when they lived there 
their well on Fox island was one hundred and fifty yards out in the 
sound; don't know his age when he died; heard him say he had eaten 
peaches at the N headland of Little Anuamessex, near where the 
outer light-house now stands; have heard there was an earthwork for 
a battery on the old ishind at said point, which I have seen myself 
(Jones island); it is now all washed away; I knew when there was a 
small ridge of land, but never knew wheat to grow there myself, but 
have heard of it from the old folks; no recollection of hearing King 
Nelson say anythings of the washing away of land between Fox island 
and Watts island. My wife is still living, and I have heard her say 
that she was born down here on the marsh where Billy Lawson lived — 
now vacant; she was born on the hammock between Soners cave and 
Jenkins creek; it is about 3 miles from that hammock to Cedar straits; 
it is a good big marsh; I don't know who claims this marsh now; Isaac 
Lawson, nicknamed Jenafer, bought the hammock between Soners 
cave and Jenkins creek, and how much of the marsh he bought I can't 
tell; he bought it not over 3 or 4 years ago; he bought it of old Billy 
Lawson's heirs; old Billy bought it of Elijah Purit; I don't know who 
he got it from. Middleton Mason moved from Fox island to Onan- 
cock, in Accomack, and there I don't know what become of liim. 

his 
(Signed) McKENNY M TAWES. 

mark. 

[Marked seperately by the clerk, John Mawbray, and Mr. Wise.] 



Deposition of Abraham Somers. 
Mr. Abraham Somers was n^g»ffirmed and f-xamined. 

I am very deaf, my name is Abraham Somers, and my age tradi- 
tion says is 79 ; I was born in 1793 ; I was born in Delaware ; came 
here when quite a baby — moved here ; was acquainted with old King 
Nelson, lived near him ; about three-quarters of a mile say ; don't 



• 166 

recollect how long he has been dead ; have heard him mention the 
line of Virginia and Maryland ; he showed me the tree on Smiths 
island that was a mark of the line from Smiths point. Have been on 
Smiths island, but the tree was cut down before I first went there ; 
I could see it when standing from King Nelson's house ; it was said 
to be a gum, and stood in Butler Tyler's yard ; it is not washed away, 
and the land is there now ; don't know but the stump is there now ; 
he said it ran by Watkins point. Butler Tyler I did not know, but 
I knew David Tyler, his brother ; and I knew a daughter of Butler 
Tyler name Nancy ; the two brothers lived close together. King 
Nelson showed me the tree, and told me it was a line. This was said 
by King Nelson to be a mark of the line from Smith point to Watkins 
point. 

his 
(Signed) ABRAHAM M SOMEKS. 

mark. 



Deposition of John Gullen. 

Mr. John Cullen was next sworn and examined. 

I was 79 years of age the 13th May present this month ; was born 
in Annamessex, where Hans Lawson, the father of James, and grand- 
father of Hans Lawson, lived ; have lived there as my home all my 
life when at home, but have been a great deal from home, I knew 
King Tommy Nelson ; can't say when ; but think he died about 
1854 or 1855. Have heard him say that his father, Sacker Nelson, 
told him that he had seen the time when he could have taken a fence 
rail and have reached across all the break-throughs, and have walked 
across them all between Fox's islands and Watts' island. I never 
heard King Nelson point out any line across Tangier sound between 
Maryland and Virginia ; but once when I was at John Nelson's, and 
when the coast survey had its sites or signals set up, he pointed to 
one on Fox island, and said that was near where the line of Maryland 
and Virginia passed. It appeared to be pretty much on the west 
point of Fox's island, near, I presume, where a pine with a round top 
stands ; there was but one tree. Never heard him say more about 
the line. Was never on Smiths island but twice ; only in harbor. 
Was with Jno. S. Handy and Henry Thomas to lay off the first elec- 
tion district laid off on that island by Maryland, (Here a memo- 



167 

fandum of the tecord of the time was shown him by Mr. Jones, in 
June, 1835.) Don't recollect the bounds laid off. Soloman Evans, 
Thomas Tyler and another old Mr. Evans described where the line 
was ; I went with them to the church ; they were notified that we 
were going on, and we met there at the church. Then I asked them 
to give me the line between Virginia and Maryland, and we made the 
return according to the information they gave us. They told me that 
John Tyler, who lived at Horse hammock, lived in Maryland, and 
we made our report on the verbal descriptions of the persons whom 
we examined. We did not go to Horse hammock, or to any point, 
but took the description at the church, and they all told me that John 
Tyler lived at Horse hammock, and I thought, and we all thought, 
that Horse hammock was " Drum point." Never had the line pointed 
out to me at any other time, and thought the line across the sound 
commenced at Horse hammock, and never had any point shown me 
on their side of the sound for the course of the line between the two 
States. I arrested a vessel in 1851, called the Fashion, belonging to 
Severn Tyler, and John Tyler was on board as captain. Saw her 
dredging off the mouth of Little Annamessex, west of that mouth, at 
a rock called Filly's rock, northeast of the Great or Big oyster rock — 
the largest rock in the sound. We did not arrest her at Filly's rock, 
but we were coming up the channel of the Tangier sound, and the 
boats saw us and became suspicious of our intent, they bore down the 
sound in a southwest direction, s^ if he wanted to get to Horse ham- 
mock, which was John Tyler's house. From where we saw him 
dredo-ino- he ran about two miles before we arrested the vessel. At 
the point where the arrest was made he was, I suppose, in Virginia 
waters. There were witnesses in the case of Severn Tyler vs. me, ex- 
amined as to where the line of Virginia and Maryland was — Thomas 
Tyler being examined. I don't know whether Hoffman was sworn. 
T. Tyler said that there was a cedar standing on the East side of 
Smiths island, but that the marsh, or point, where the cedar stood, 
was all washed away. That he and others went down on that side 
where he understood the cedar had stood, and he waded in and searched 
until he found some roots ; he pulled up the roots and carried them 
to the shore, and told them to examine them and see whether that was 
not cedar, and it was pronounced to be cedar, and he cited from 
where the cedar was and said the boat had been arrested in Virginia 
waters. I asked how it was, that when we laid off the election dis- 
trict that he said Horse hammock was in Maryland, and he made me no 



168 

answer, but turned away and would not answer. He was father of 
Severn Tyler, and grandfather of John, the captain. I think that no 
witnesses were examined on my part in the case of Severn Tyler vs. 
me (I am the same man, John Cullen, against whom the judgment 
was had,) respecting the line of the two States. 

Examined by Mr. Wise. 

I was absent much from home, having for many years been a sea- 
faring man; and all that I know about the line between Maryland and 
Virginia, either of my own knowledge or by tradition, I have stated. 
I think it was in 1853 or 1854, when King Nelson told me what his 
father told him about the state of the waters at the break through between 
Fox island and Watts island. Then at the time when he so told me 
the space between Fox island and Watts island, was all broken through. 
The space is about fiv^e miles; I had known that space ever since I 
was 15 or 16 years old; it has been 40 years since I was at Fox or 
Watts islands either, but I think they have washed away a great deal. 
I have not been there, at either Fox or Watts islands, for 40 years. 
I was acquainted with Watts island from the time I was 16 years of 
age until about forty years ago. I knew Watts island from about 
1809 to about 1832; the last time I was there, about 1832, it had 
washed away about 75 yards in front of the house where old Bob Par- 
ker had a wharf; I think the high land had washed from 70 to 80 
yards, the N. end of the island had washed away a good deal; I can- 
not tell how much Fox islands have washed away in the 23 years from 
1809 to 1832. I think the south end of S. Fox island had washed 
away from 40 to 50 yards. The small island just off the N. end of 
Big Watts island, had washed away but very little. The western- 
most point of the north end creek had washed away very much; there 
were two break throughs at the westernmost point and one at the eas- 
ternmost point of N. end, which had washed a great deal. When 
King Nelson informed me, as I have stated, about these waters be- 
tween Fox and Watts islands in 1854, I do not know how long before 
his father, Sacker Nelson, had died; I never knew Sacker Nelson; I 
know Josiah Parker, the son of Robert Parker, now living; I believe 
his age is about 82; he is my father's half brother, and I have not 
visited him for forty years, nor has he me in that time. In all my 
time I have never known Fox island to be connected with the main; I 
don't now know, and never did know. Fox island well. When I first 



169 

knew them there were first the N. island called Green harbor; 2d, go- 
ing S. Maggatty hamraack, next Doe's hammack, next Slip ledge, 
next the Long ledge, next the Round ledge, and these were the East- 
ern hainmocks of Fox islands; and then on the west of the groupe is 
Big Fox island; and then is a liftle island between the two thorough- 
fores, and now I am told Big Fox island is cut in two by a break 
through, and there is Muddy marsh to the east of the lower Fox is- 
land. There were three muddy marshes, but there is but one now; I 
never knew of an island in Pocomoke sound called Georges island. 
There is what is called the middle ground, a sand bar over which a 
canoe cannot pass at low water. When King Nelson showed me where 
the line of the two states passed on Fox island, I think was in 1853 
or 1854. If I have been understood as saying that King Nelson in 
1853 or 1854, I think, when the coast surveyors had erected signals 
along the Eastern coast of the Tangier sound, that he actually pointed 
to or actually showed me any signal on Fox island; I did not mean to 
be so understood, but I mean to say that he told me that a signal 
which was on Fox island, was near the line of Virginia. He did not 
point to any signal on Fox island or show it to me, but I had seen 
one there, and we were talking about it, and he said it was near the 
Virginia line. It was on the northerraost one of the groupe of Fox 
islands; I never knew otherwise than this that the signal there 
was near the Virginia line. Of my own knowledge, I never knew 
where the Virginia line was; I had my ideas of it from hearing 
that there was a direct line from Smiths point to Chiucoteague. I do 
not say that that line would cut any part of Smiths island, and I 
don't think it would. I laid off the line of the election district on 
Smiths island in 1835, leaving a part of said island in Virginia, be- 
cause the men on the island told where they understood it to be. The 
one tree which was standing then on Fox island, was on the norther- 
most island of the Fox island groupe. If there is but one tree of a 
large size standing on Fox islands, it must be on the northernmost 
island, and on the north end of the northermost island. I do not 
know whether there is any tree at all now on the northernmost island. 
If there is one large tree now standing on Big Fox island too large, 
and too old to have grown there since 1853 or 1854, it must have been 
there in 1853 or 1854. I never knev/ of any mark, tree or other mark 
of boundary between Maryland and Virginia on either of the Fox is- 
lands, or on the main land near Cedar straits. I was never informed 
of any such mark other than as I have described, or as related to me 
22 



170 

by King Nelson. I never looked for any mark at the, place where I 
saw the signal of the coast survey talked about by King Nelson and 
myself. The copy of the report signed and sealed b}' John S. Handy, 
John Cullen and Henry Thomas, dated 16th June, 1835, made by 
them to the levy court of Summerset county, describing the limits of 
the election district then laid off on Smiths island, has been read to 
me, and it seems to be a correct copy of the report made by me and 
the other two commissioners. 

The report referred to above is as follows : 

"Commission from the of Summerset (county) to John S. 

Handy, John Cullen and Henry Thomas, of Summerset county, in 
the State of Maryland, to lay off so much of Smiths Island as lies 
within the body of Summerset county aforesaid into a separate and 
additional District," before the 1st August, 1835. Commission 
dated 1st April, 1835. Keturn dated 16th June, 1835 : 

"In pursuance of the said order we have reviewed, laid out, and 
return as follows for said election district, to-wit : Beginning on the 
East side of said island at a place well known by the name of ' Drum 
point'; thence Westerly cross to the bay to a hammock called Sassa- 
fras, lying on the bay shore; thence by and with the bay up to Kedge's 
straits; thence by and with the sound to 'Drum point' to the begin- 
mn<y. And that we at the same time have elected the Methodist 
meeting-house as the most suitable and convenient place of holding 
the elections in said district. 

" In witness, &c., June 16th, 1835. 

"(Signed) JOHN S. HANDY. [Seal.] 

JOHN CULLEN. [Seal.] 
HENRY THOMAS. [Seal.]" 

When I seized the Fashion in 1851 I thought the Big Oyster rock was 
in Maryland. When I seized the Fashion, running from Fillby's rock 
in a S. W. course, and as I thought towards Horse hammock, the 
then residence of John Tyler. I seized her at the North end or up- 
permost part of the Big rock. When I seized her there I thought at 
that time that she was in Maryland. In the civil case of Severn 
Tyler against me for seizing the Fashion there, the verdict and the 



171 

judgment were decided a^^ainst me, and I had to pay the damage 
wliich was assessed against me. The damage was ass'ed against me 
for the damage and detention of the vessel and the witnesses who were 
sworn for the plaintiff; I did not mean them who put the value ou 
the damages done to the vessel. Thomas Tyler, in the trial of the 
case of Severn Tylf^r vs. me, swore that the cedar described by him 
stood some distance North of Horse hammock. From that point 
above Horse hammock he sighted across the sound and said the vessel 
was in Virginia; he did not say to what point he sighted. He, Thos. 
Tyler, was not examined as witness in the case of Severn Tyler ag'st 
me. He testified in the case prosecuted by the state of Maryland 
against the vessel, and stated what he did about the cedar. When 
the vessel was cleared from the prosecution by the state, then Severn 
Tyler sued me about a year afterwards, and recovered verdict and 
judgment against me, and Thomas Tyler was not examined in that 
case. Thomas Tyler did not admit, when I asked him how he came 
to tell me that Horse hammock was in Maryland when the commis- 
sioners laid off the election district on Smiths island, that he had told 
me so, but walked away and made me no answer. He did not deny 
it, nor did he admit. 

Re-examined hy Mr. Jones. 

According to my recollection, the verdict and judgment which were 
rendered in the case of Severn Tyler against me, in the civil suit for 
damage and detention of the vessel, were rendered by consent. Mr. 
Crisfield, the commissioner for S. Tyler, came to me and said my case 
was a good one for thtj legislature, and urged me to compromise; that 
he would do all he could for me. My counsel. Judge Tingle, coming 
together with Mr. Crisfield, also advised the same course, I recollect 
of no witnesses being examined, except about the damages to the 
vessel. I recollect of no witnesses being examined about the deten- 
tion of the vessel, and of no witnesses being examined except Southey 
Miles. There were no witnesses examined as to whether the vessel 
was seized in Maryland or Virginia, and none as to whether the vessel 
v/as dredging in the waters of Virginia or Maryland — none according 
to ray recollection. But witnesses were examined in the previous case 
of The State of Maryland vs. The Fashion; and I was myself ex- 
amined in those cases, and stated what I. have stated here, that she 
was seen by me to be dredging on Fillby's rock, and was seised by u;6 



172 

on the upper part of Big rock, and the vessel was acquitted or cleared 
of violating the laws of Maryland by dredging in her waters. By the 
line spoken of by me as the line which I thought was the line of Vir- 
ginia and Maryland, running from Smitlis point to Chingoteague, I 
meant Chingoteague island. 

(Signed) JOHN CULLEN. 

Deposition of Benjamine Langford. 

Mr. Benjamine Langford was next sworn and examined : 

I am now 72 years old; I was born in Annamessex, about 4 miles 
East of this place, near where I now reside; and I now reside right on 
the Pocomoke sound, about f of a mile from the shore; I live on the 
tract known and called Kirk's purchase. (Here the witness produced 
a paper juirporting to be an extract from Leten No. 14, folio 265 or 
261, stating that the grant of Kirk's purchase, dated 10th Ma}', 1671, 
lying near " Watkin his point," as shown by the copy hereto annexed.) 
The tract of land called Watkins point, lies on the East side of Apes 
Hole creek, near to the mouth of it — once called Johnstons creek; 
have never heard any tradition of any line from Tangier sound across 
this peninsula to Pocomoke river; never until Lee came here to run a 
line; I heard they were running a sort of a promiscuous line from 
Worcester county through here, but I never knew what line they run, 
nor where they made it. 

Examined by Mr. Wise. 

I have heard of no line except what I have learned from books — 
from Jefferson's Notes of Virginia and from McMahon, John V. L. 
McMahon's History — and he says about the same thing; that a line 
run from Cinquack to Watkins point, and where Watkins point is I 
never knowed. I don't think I ever heard of any tradition about a 
line run by Philip Calvert and Edmund Scarburgh. I did not know 
of that line, but I may have heard of it. I had read John V. L. Mc- 
Mahon's History of Maryland before Lee run the line which he run. 
I read part of it, but never read it through in my life. Have heard 
of a man named Kilby; believe he was a lawyer; I have heard so, but 
never heard any more about him. I don't know where I got the tra- 
dition of the Calvert and Scarborough line. 

(Signed) BENJAMINE LAUTEFORD. 



173 

In pursuance of adjournment at the Cave hotel, Crisfield, May 27th 
inst., the commissioners met at Horse hammock May 28th inst., and 
finding they had no one competent to administer an oath, they sent to 
Crislield to procure a J. P. or N. Pub., and met again at the house of 
Johnson Evans, at Horse hammock, May 29th inst., and proceeded 
to examine other witnesses as to the boundary of Maryhmd and Vir- 
ginia on Smiths ishind — 

Present— Thos. K. Wh , J. P. of the State of Maryland, 

Hon. I. J). Jones, and W. J. Aydelotte, commissioners of Maryland; 
Hon. D. C. DeJarnette, Wm. Watts, and Henry A. Wise, commis- 
sioners of Virginia. May 29th, 1872. 

Deposition of John Marshall. 

John Marshall was first sworn and examined : 

I am going in my 63d year ever since the 19th of the present month 
of May; I was born on Sykes island; I came to Smiths island to reside 
when I was about 17 years of age, and have resided on Smiths island 
ever since. I have known the greater part of the old inhabitants of 
Smiths island ever since; I knew Tommy Tyler, William Tyler, Eli- 
jah Evans, John Parks, John Evans, and I knew Jacob Bradshaw and 
Solomon Evans at Kedges straits, and Hampton Bradshaw and Lit- 
tleton Bradshaw his brother, and others, and all these and other old 
people are now dead except Mrs. Vina Bradshaw, the widow of Jacob. 
The oldest man now living is Teakle Evans, who is, I think close by 
80 or 85 years of age, and the next oldest man is Capt. Ephraim Ty- 
ler, who keeps the Fog Point lighthouse; and the oldest of the junior 
generation are Hainey Bradshaw, Severn Bradshaw, Francis Evans, 
Mrs. Maria Gray, and myself and others. I was shown what was said 
to be the line between Virginia and Maryland on Smiths island, say 
from 15 to 20 years ago, by old Mr. William Tyler, when he and I 
were alone; he .'howed me a boundary stone from three quarters of a 
mile to a mile north of Horse hammock, where Johnson Evans now 
resides, and where old Capt. Peter Evans lived at that time ; he told 
me that it had (was) been fixed there for the boundary stone between 
the two States of Maryland and Virginia ; hft told me that he was 
carried to that stone and whipped by his grandfath^^r, I think named 
Butler Tyler, to the best of my knowledge, and that he was whipped 
there to make him remember that it was a boundary stone between 
the two States. This was about 15 or 20 years ago; the stone has not 
been moved to mv knov/ledge since, but the ice may have moved it 



174 

two or three feet, but I do not know that it has moved it, and if it 
has moved it I would say that from my knowledge of the movements 
of the ice that it has moved to the south if it has moved at all. I 
was first called to notice the stone in 1851 when the ease of John Ty- 
ler vs. the State of Maryland was tried before the Circuit court of 
Summerset county, in the State of Maryland, in the year 1851. This 
case involved the schooner Fasiiion, of which Severn Tyler was owner 
and John Tyler was captain^ fur dredgin]^ oysters in the waters of 
Maryland contrary to her laws; witne?ses were examined in the trial 
of that case as to where the line of Virginia and Maryland ran across 
the Tangier sound; I was examined myself as a witness in the case, 
and I heard the examination of other witnesses in the case; the vessel 
I saw seized, and she was taken by John Cullen, I know not by what 
authority, on the Westward side of the great rock; that rock lies 
about from East to S. East from Horse hammock, this house; I did 
not see her in the act of dredging; that rock is a very large rock; it 
lies north of the present Davidson & Lovett line; I mean it is a large 
oyster rock, called the Great rock; I don't think any portion of that 
rock lies North of an East line from the stone described by me; I have 
never been called to note that stone since, until called upon by Mr. 
Aydelotte and Mr. Wise, here present, in 1871; at that time I showed 
that stone to these two commissioners, and to Capt. Browne and 
Drummond and others ; the same stone which I showed to them then 
at the same place, I went to on Friday last and saw it removed from 
its place, lying on the edge of the marsh, and a stake sticking in the 
place whence it was removed. Acccording to what I heard Mr. John 
W. Tyler testify in the aforesaid case in 1851, I have no doubt that 
stone was a boundary stone between the two states ; he testified in 
court that he was carried to that stone as a boundary stone and 
whipped severely to make him remember it as a boundary. Mr. 
Thomas Tyler also testified that he was carried to the stone and 
" ducked " to make him remember it as a boundary. Mr. John Tyler 
also testified that he was carried to it and whipped at the same time; 
these were all who testified about the stone at that trial, and they are 
all three dead; Mr. Wm. Tyler died about three years ago, and I am 
told his age then was about 80 ; Mr. Thomas Tyler died, I am told, 
about 1864, and his age on his tombstone is marked 91 years, so that 
he was about 78 years of age at the time he testified in said case ; 
John Tyler died, I am told, 17 years ago last September; I don't know 
his age v/hen he died, but am told he was betvveeQ ^0 and 70 vears of 



175 

age, so that he must have been about 61 when he testified ; Wil- 
liam Tyler was the son of David Tyler ; Thomas Tyler was 
the father of David; and William Tyler and Thomas were both sons 
of David, whose father was Thomas Tyler. John Tyler is said to have 
been the father of the last named Thomas Tyler, who was the oldest 
Tyler I have ever heard of Thos. Tyler, the son of John the elder, 
lived, I am told, at the Home place, on Drum Point, and that place 
has been as long I have known it in the Tyler family, until purchased 
by my son, John Wesley Marshall, and others, in 1866. I know of 
but one "Drum point" on Smiths island, but am told there are two. 
I remember there is a Drum point two or three miles North of this 
on the N. East coast of Smiths island, but that point is not the 
" Drum point" which I mean as the home place of the Tylers. Where 
Wm. Tyler lived was called " Drum point," and where Thomas Ty- 
ler lived was called "Black Walnut point." These two points were 
adjoining lands one to the other. Benjamine Bradshaw lives on " Drum 
point," also William Evans, also Wm. Snead Bradshaw, also Stuart 
Evans; and John W. Marshall, my son, lives on Black Walnut. These 
two points are near the middle of an East and West line across 
Smiths island. This Drum point is not fiir off from Tylers ditch; 
and on Sabbath last Mr. Ephraim Tyler, the keeper of the lighthouse 
at Fogs point at the N. end of Smiths island, told me that he could 
not be here to testify, but sent word by me to the commissioners that 
the line between the two states, as he was told by old Mr. Butler Ty- 
ler, his grandfather, I think, ran right through the yard of the home 
place, between the kitchen and the house, at Black Walnut point. I 
I don't know who Butler Tyler was; I am told that he was the elder 
brother of David Tyler. There are two ditches or canals called Tylers 
ditch or canal — one runs by Black Walnut point, and is the Northern 
one; and the other I never heard called Tylers ditch until I heard 
the deed read from Elisha Crocket and wife to Richard and William 
Evans. Always before I had heard it called Parkers ditch. The one 
North of this I had always before heard called Tylers ditch. The 
Southern ditch cuts South point marshes, and how far these marshes 
run North I don't know. I own half of South marsh now; my son a 
small part or share in it. We hold up to Parks ditch.. Nobody lives 
near it on South point. The marshes West of South point are called 
Hog neck; North of Shanks marshes, which are the Southern part of 
Smiths island. A house is now standing on Hog neck where I am told 
that the runaway marriages took place to and from Maryland and Vir- 



176 

ginia. The house is standing, but the kitchen is down. I was told 
by old uncle John Parker, who was a very old man, and owned the 
place, that when couples ran away from Maryland to be married in 
Virginia, they were married in the kitchen, and when they ran away 
from Virginia to be married in Maryland, they were married in the 
dwelling house. Mr. John Tyler now lives in the dwelling house, and 
I can now come pretty near where the kitchen stood. I have known 
old John Nelson, who was the son of old Tommv Nelson, called Kino- 
Nelson. John Nelson's children have always, as far as I know and as 
long as I have known them, always lived on the lower part of Little An- 
namessex. I mean between Tangier and Pocomoke sounds, and South 
of Little Anuamessex. They lived higher up a great deal than Cedar 
straits. I live on Shanks island, and have paid taxes in Accomack 
county, Virginia, ever since I have lived on Smiths island. I first set- 
tled on South Point island, close up to Drum point, where Benjamine 
Bradshaw now lives — the creek just separated us — a mile more or 
less apart; and then, as well as now, I always paid taxes in Virginia. 
I have never known the time when Foxs islands were joined to the 
main land North, and I have never heard of any such fact; and when 
1 first came to Smiths island I came through Cedar straits in a canoe 
and flat sloop, and have known it ever since, having been through 
them, I suppose, one hundred times. I have also known what they 
told me were Foxs islands. There is a neck of land between Big Fox 
island and the main. It is an island now, but whether it has been 
artificially cut through or not I do not know. The passage between 
Watts island and Foxs islands has always, in my recollection, been 
open to vessels of 6 feet draft and a little over. I have gone through 
there myself in a loaded vessel drawing 6 feet water. I think it is 
not more than three miles from the lowest Foxs island to Watts 
island, and I have never heard of any tradition stating that there was 
ever a time when one, with the aid of a fence rail, could walk from 
Foxs islands to Watts island. I don't know where Cow ridge is, ex- 
cept what I have been told — that it is where Severn Bradshaw now 
present lives, lying South of the Thoroughfare on Smiths island. The 
Thoroughfare runs right by it. His house is not more than one hun- 
dred yards from his landing on the Thoroughfare. I do not myself 
know of any place on Smiths island called Home hammock, but have 
heard of a place called Oak hammock, where Aleck Tyler now lives. 
I know where old man John Parker lived. He is now dead. He lived 
from 2 to 3 miles South of the North Tyler ditch, which cuts through 



177 

into the Thoroughfare. John Parks' land was conveyed over some 
twenty years ago to John Hoffman, who removed to Pongoteague 
creek, in Accomack county, Virginia, and he sold the same land to 
John and Severn Tyler. John is here at this home now, and lives 
now in Hogs neck, on the same. They tell me that 900 acres of the 
land was recorded in Accomack county, Virginia, and the balance was 
recorded in Somerset county, Maryland. I have never paid taxes in 
Maryland on land or other property, or for any purpose whatever. Old 
William Tyler told me that when Peter Evans lived here at this place 
of Johnston Evans, called Horse hammock, he, William Tyler, al- 
ways paid the taxes assessed in Virginia at Drummon town, and Peter 
Evans (who was my brother-in-law) paid him, William Tyler. 

Examined by Mr. Jones. 

To prevent misunderstanding of what I have heretofore said, I will 
now state that my meaning as to the line when I first knew of the 
stone spoken of by me, was to say that I first knew of this stone 15 
or 20 years before I was examined in 1851 in the case of John Tyler 
vs. The State of Maryland, about the " Fashion." I now say that I 
was first told of this stone by Wm. Tyler about the time of my first 
coming to Smiths island. I was never told by Mr. Wm. Tyler anything 
about a cedar near the stone ; and if he so stated in court, I never 
heard him, or don't recollect it. I never heard anything of a bounder 
but a stone, and nothing in the trial of the case of the Fashion about 
a cedar ; if anything was said about a cedar I don't recollect it, and 
was not i3res?nt all the time of the trial — nor anything of a cedar 
stump or root that I recollect. Nobody from the island (Smiths) , 
testified about the line of the two States but the three Tyler's. Peter 
Evans lived here at this place called Horse hammock many years — 
say 25 years or more ago. He bought it from old Mr. Wm. Tyler, 
and Alcey, his wife, for mortgage debt, and sold it to John AV. Marsh, 
who now lives on Chesconessex creek, in Accomack county, Virginia, 
I think, but I do not know; that the deeds from Wm. Tyler to Peter 
Evans were recorded in Accomack county, Virginia. 

(Here Mr. Jones read to witness an extract from a deed to Peter 
Evans by Wm. Tyler, and Alcey, his wife, dated 2d October, 1842, 
and also a deed from Peter Evans, and Triffeny, his wife, to John W. 
March, dated 3d October, 1857, both deeds recorded in Somerset 
county, Md., and both deeds conveving a tract of land called Horse 
23 



178 

hammock, and reciting metes and bounds thereof, as in Somerset 
county, Md., and beginning at a well known bounder stone Iving at 
the sound side, about three-quarters of a mile to the North of Horse 
hammock, as shown by copies hereto annexed as exhibits.) 

Has no recollection of any processioners coming on here to procession 
lands on Smiths island from Virginia, and the officers of Virginia 
have always neglected to come on here for any purpose except when 
they wanted us to vote. I have never known a sheriif to come on 
here to collect taxes. They give in our lists themselves, and make us 
pay what they charge, and make us go to the main land. I have 
always paid in Virginia, and never to any officer of Virginia on Smiths 
island. I have always voted in Virginia, except one time, and that 
was when I lived up on South point, and then I did'nt know in which 
State I lived, and voted in both States. I pay the oyster tax in 
Virginia. Many of the people on Smiths island pay the tax on the 
oyster license in both States. Capt. Browne has granted licenses, I 
believe, to people on the island, clean up to Kedges straits. In 1833 
I lived on South point, and voted for Mr. Wise, here present, for 
congress, and voted for him up to February, 1844, when he left the 
house of representatives of the congress of the United States. Mr. 
Jones was elected in the adjoining district in Maryland in 1841, 1842 
and 1843. I never voted for Mr. Jones, but did vote for Mr. Wise in 
1841 and in 1843, for the reason that I was in Virginia and I lived 
on South point, Smiths island. 

his 
(Signed) JOHN X MARSHALL. 

mark. 

Deposition of James T. Uvans. 

James T. Evans was next called, sworn, and examined by Mr. Wise: 

My age is 59; I live close to the place where I was born, on the 
same tract called "North End." That place is very near a gum, 
about two miles North of this, close on the Thoroughfare. I took out 
my vessel license in Virginia at Drummontown until the custom-house 
was changed to Cherrystone. I was well acquainted with old Tommy, 
called King Nelson, and with old Job Parks, called Joby, two of the 
oldest men I remember of ever knowing I think they said Tommy 
Nelson was 105 years old, and Job Parks was a little older. They 
told me that they hope run this line between Virginia and Maryland, 
and carried the chain. They said they went to Ragged point on the 



179 

Potomac river and run a Southeast course five miles below Point 
Lookout, down the Potomac until they got North of Smiths point; 
from that five-mile point they struck an East course across Chesapeake 
bay to Mister's thoroughfare to a gum tree, and from the gum 

tree to Beaver hammock, and put a stone there on Beaver hammock 
between two cedars, and dents of the stumps are there now, and so is 
the stone there on Beaver hammock; and thence to a point called the 
Barn, wherealso they placed a stone, which is said to be there; and 
then an East course to Jones' island, where they said a peach 

orchard stood, leaving a part of Jones island on each side of the line; 
and now I can't saw whether they said they ran an East or Easterly 
course from that point to Pitts creek on the Pocomoke river. They said 
they brought the stones from Potomac river which they placed as 
above stated. I have seen the gum tree of which I speak, and recol- 
lect it well; that tree stood on the South side of Misters thorough- 
fare. Beyond Pitts creek they did not say anything about running 
the line. Besides this tradition there were other traditions about 
where the line was : Some said it was at Old Hein island channel; 
some said it was up as high as Frogs island in the Thoroughfare, and 
some said as high as Kedges straits. I was once a pilot with Blount, 
the coast surveyor, about 16 or 17 years ago. He settled a large cedar 
bounder about ten paces on the sandshore at Kagged point on the 
South side of the Potomac, and I believe that post is still there, it 
was put down so v^ry deep; I can't say how deep. The gum spoken 
of was on the land of Marmaduke Mister, and is now Severn Brad- 
shaw's land. The cedar post at Kagged point was put on the land of 
Mr. Bouie, whose first name I don't recollect. Mr, Blount exactly 
agreed with the statements of Tommy Nelson and Job Parks as to 
the line as far as Pitts creek. Mr. Nelson told me about this line 
when I lived at Jones island, about 36 years ago, counting by my 
children. Then I moved from Jones island to the upper house on 
Tangier island about 28 years ago, and Job Parks and I became ac- 
quainted after I moved to Tangier, and he told me this about the same 
time — 28 years ago; he lived on Tangier, and is the father of Stephen 
Parks, now living. Both Nelson and Parks stated that when the 
line was run there were a number of officers and other persons engaged 
in the v/ork, and thf^y had barges, &c., with them. I was told by 
them separately and apart from each other, a long way apart, and at 
different times, and they agreed with each other. I have seen the 
jitone at Beaver hammock, between the two cedar stumps, v/hen it was 



180 

in one piece; it is now in two pieces; I can't say how big it was, but 
according to my recollection, and that of others, it weighed about a 
ton; when I saw it on the bank before it went down the bank it looked 
almost white, showing plainly from afar. There came a very hard 
freize about 1832 — I know by the death of William Tyler — and a 
heavy storm, which cut the ice under the stone and drove it out, and 
the stone was afterwards found in the water in two pieces. Beaver 
hammock is where you found the stone, below Troy island from a third 
to a half mile. Nelson and Parker mentioned no other bounders of 
state, and no other marks of the line to Pitts creek, that I remember. 
I have heard old Mr. Johnny Parker say, the same who lived where 
John Tyler does, that the line went between her great house and 
kitchen; and Butler Tyler always said it went through his yard, be- 
tween his two houses, dwelling and kitchen; and Marmaduke Mister 
said it was not so; it went to the gum, for he saw Nelson and Parks 
when they helped to carry the chain. 

Examined hy 3Ir. Jones and Written hy Blr. Watts. 

Job Parker told me he thought he was over a hundred years old, 
and was something older than Tommy Nelson; they said they helped 
to run this line soon after the Kevolutionary war; Tommy Nelson, at 
the time he told me, lived on Jenkins creek; we were out fishing when 
he told me; he said they commenced the line on the Potomac at Rag- 
ged point; they ran Southeast until they got five miles below Point 
Lookout, and then East to the "■•'•■ "■•'•■ * * ••' "■••■ Job Parks said 
he was pressed by the British and kept until the year 1780; he made 
his escape and got to Drals island, and worked across Maudkin sound, 
through Flat Cap shore; then travelled down to Cedar straits, and 
then started across Tangier sound upon the ice to go to Tangier; he 
came to an air hole, or streak, and jumped, fell, and slided across, and 
got to Tangier; in the spring he went into the American troops and 
served till peace, and he and Tommy Nelson were in the same brigade; 
they helped in this survey before they were discharged from the army; 
Tommy Nelson told me he volunteered in the war and served till 
peace; did not tell me how old he was at the commencement of the 
Revolution; he must have been full grown; they both told me they 
were soldiers in the service, and were employed in running the line 
spoken of before they w^ere discharged, after peace was proclaimed — 
1783; I can't say whether or not they stated that tliey carried the 



181 

chain all the way to Pitts creek; they stated that they carried it across 
Smiths island, and did not tell ma that either of them was discharged 
from the s(3rvice survey before they got to Pitts creek; I take it that 
they did go to Pitts creek. When I was employed with Blunt he was 
engaged in putting out buoys; he said the line he ran was the bound- 
ary between Maryland and Virginia; I can't say positively, but I think 
that Job Parks and Tommy Nelson had told me of the line before I 
was with Blunt; I have no education, and can neither read or write; 
I know where Queen's ridge is on Tangier island; I know of no other 
place of that name; Piney island is N. East of Queen's ridge; I know 
Rich hammock, which lies North of Piney island; old Hera island is 
a little South ot East from the North of Shanks creek, on Smiths 
island. 

[Here Mr. Wise read a copy of a commonwealth grant, signed by 
Beverly Randolf, Governor of the commonwealth of Virginia, grant- 
ing to Richard Evans forty-seven acres of land lying in the county of 
Accomack, Virginia, twenty-seven (27) acres thereof called Queen's 
ridge, described by course and distances; also, five acres thereof called 
Piney island, described by course and distance; also, seven acres, an- 
other part thereof called Rich hammock, described by course and dis- 
tance; also, eight acres, the residue thereof, call Old Hern island, and 
described by course and distance. Sealed with the lesser seal of the 
said commonwealth on the 31st day of October, A. D., 1791, and of 
the commonwealth the sixteenth, and certified by William P. M. Kel- 
lara, Register of the Land Office of Virginia, which copy is herewith 
filed as a part of this deposition, marked XX.] 

his 
(Signed,) JAMES T. X EVANS. 

mark. 

Deposition of David Tyler. 

Mr. David Tyh-r was next called, sworn and examined : 

I am 53 yaars old 29th April, 1872; born in 1819. I reside now on 
the North end of Smiths island, not far — a njile say — from Fog's 
point. I was born and raised on the land where Thomas Tyler, my 
father lived, and resided there until I was 29 years of age. My father 
was the brother of Wm. Tyler, and they were the sons of David, who 
was the son of Thomas Tyler, who was the son of John Tyler, the 
first of whom I know anything, who came from England, and where 
he settled I don't know, but presiime he settled on this island. David 



182 

Tyler died, I think, wheu I was four years old. My father died in 
1864, and Wm. Tyler died in 1868. They thought there was a line 
across the lower part of this island. They lived on a piece of land 
where their father and old Butler Tyler, their uncle, lived. Butler 
owned all the land, I am told, at Drum and Black Walnut point. 
He was the eldest male heir under the English law, and becoming 
infirm, he sold the whole of his land to his brother David. David had 
seven children — Thomas, John, Nolly and Severn, William, Zipporah 
and Ann, naming them as their ages run. Benjamin Bradshaw, Wm. 
Evans, of James, W. S. Bradshaw, Stuart H. Evans, are all who are 
living at Drum point, and Thos. Bradshaw, Jno. Wesley Marshall, 
Peter J. Marshal, Ben. Marsh and John H. Bradshaw, live at Black 
Walnut point. The home of Butler Tyler, who owned all the land, 
was at Black Walnut point. I have heard my father, Thomas Tyler, 
say that the line run west from this piece of rock above Horse ham- 
mock, more than a half a mile across the island. I have seen that 
rock two or three times — it is out of the passway a little. I have 
known that rock to be there 20 years, I know. It was never moved 
within my knowledge since I first saw it I heard them talk about 
it, and went and saw it. The old man William Tyler said that he 
was whipped there when a small boy to make him remember it was a 
boundary between the two States, I thmk, but not sure. It was, I 
understood from them both, that it was a S. E. corner, a portion of 
the Pitcraft pattent, and also a bounder of this land. 

Examined by Mr. Jones. 

The same stone has been taken and held as the beginning boundary 
of this tract of land called Horse hammock. John Tyler, my uncle, 
lived here. He died in 1834. Peter Evans bought it under a mort- 
gage deed from John Tyler to William Tyler. I was but a small boy, 
and know but little of business matters of that time. I cannot say 
when that stone was first called a bounder of this place called Horse 
hammock. My father lived here more than 54 years ago — he removed 
from here about 1818, I think, and as I have heard, and he always 
held the stone as the beginning of this land called Horse hammock. 
I wrote one deed from Peter Evans and wife to John W. Marsh, re- 
corded at Princes Ann, Maryland, in 1857, and the other was from 
J. W, Evans and his wife, to his father, Johnson Evans, in the year 
1872^ recorded I doo't Jjnow where. I ^eyer e^t^jjiined any othey 



183 

deeds for this land. When Wm. Tyler gave Peter Evans the deed, 
there was right smart dispute about where it ought to be recorded; 
Evans wanted it recorded in both States. Tyler told him that was 
unnecessary, and it was recorded in Princess Anne; and Evans got a 
copy and carried it to Drummontown, the C. II. of Acconaack, and 
had it recorded there. I have no knowledge of where any deeds for 
this place, called Horse hammock, prior to this deed, were recorded. 
John Tyler was a justice of the peace for the State of Maryland 
before 1830, when he lived hire. I never heard either my father or 
uncle William say this house, callejl Horse hammock, was in Mary- 
land, but acted as if it was. My father thought it was in Virginia, 
and I heard a strong argument between him and James Hoffman 
about where the line was. Hoffman insisting that all Smiths island 
was in Maryland, down nearly to Old Hern island, and my father con- 
tending a part of Smiths island was in Virginia. My father thought 
that boundary stone I have named, north of this house, was on the 
line between the two States. My uncle William thought that the 
deed to Peter Evans was sufficient to be recorded in Maryland, and 
refused to give another deed, and Evans had the copy recorded in 
Virginia. I never put the quantity of land by naming the number of 
acres in the deed I wrote. The persons residing in this house, within 
my recollection, I have known to vote in Maryland, and they send 
their children to the free schools of Summerset county. Four years 
ago a public road was laid out from this to the church on 

this island, as a county road of Summerset county, Maryland, built at 
the expense of that county, costing about $1,300. I have no know- 
ledge of the manner and cause of appointing ray uncle a J. P. of 
Maryland. There had to be two justices of the peace on the island 
to certify deeds, and I believe my uncle and Solomon Evans were ap- 
pointed at the same time. Solomon Evans lived at the very North 
part of Smiths island, I never knew justices to be appointed on this 
island before. James Hoffman was elected a justice for Maryland in 
1853, and served two years. He lived where John Tyler now lives, 
on Hog Neck; and there is a piece of land South of where John 
Tyler lives, conveyed by Hoffman, or his son, to W. D. Bradshaw. I 
think I wrote the deed and took the acknowledgment, but I don't 
know where it was recorded. 

Here Mr. Jones produced a copy of a deed, dated 11th day of May, 
1872, from J. W. Evans and Polly, his wife, to Johnson Evans, de- 



184 

scribing the land as situated in Summerset county, written by the wit- 
ness, as an exhibit. 

The witness then added that the stone mentioned in this affidavit is 
the same mentioned in this deed. 

(Signed) DAVID TYLER. 

Deposition of Severn Bradshaiu. 

Severn Bradshaw was next called, sworn and examined : 

I am in my 63d year of age; residing on Smiths island, at the 
thoroughfare, called Misters thoroughfare, and state that I heard my 
father, Jacob Bradshaw, who was in his 63d year when he died, say 
that he had always heard that when the old line between Virginia and 
Maryland was run, the persons who run it shaped their course across 
the Chesapeake bay for a gum tree, which was standing then about 
125 yards South of my house, where I now live, on the Orchard ridge. 
I don't think it has been exceeding 25 years, if that, since that tree 
died. I had children then — when it died — pretty well grown. It was 
a large white gum, 21 feet in diamater, I think, though I never mea- 
sured it; and it was a very high tree, and bushed off in two prongs to 
it, and covered a half acre by its top when in leaf, and died, I think, of 
old age. The body was hollow. The stump is mostly gone, but some 
of it is still to be seen above the ground, but the roots are there and 
you can see the bigness of the tree. The line, it was said, ran so near 
the Thoroughfare that they came through the Thoroughfare and then 
came down it and took that tree as the mark, which they thought 
near enough. I have heard of a stone in the Thoroughfare — I cannot 
say how long ago, but a good while ago — but never saw it until last 
year. It lays about ten or twelve yards, I suppose, from the shore, 
in two pieces, five or six feet apart, and about one hundred yards to 
the South of Beaver Hammock point. From what I have heard from 
the old people on this island, and from the size of the stone, I believe 
positively that it was put there for a boundary mark between the two 
states of Maryland and Virginia. When old King Nelson, who died 
about 20 years ago, once came ov^r to this island from Annamessex — ■ 
he was at Ben. Evans' house at North End — he conversed about the 
line of Virginia and Marjdand, and said that, in his opinion, that 
Misters thoroughftxre was the line, and that the church stood, he 
thought, in Virginia. He did not speak of the white gum, nor did 
he say what was the course from Thoroughfare. He told me— the same 



185 

summer the year he died — mayhe the year before — that he thought his 
age was about 100 years. His reputed father was Sacker Nelson. I 
have heard my father say so. He and his descendants lived ever since 
I could remember on Jenkins creek, at Little Annamessex. Henry 
Bradshaw and Henry Dies know of this stone. I was the rise of 40 
years old when I heard King Nelson say what I have stated. When 
I first heard of the gum tree being the line from my father's, I sup- 
pose I was ten or twelve years old. My father died in 1843, 29 years 
ago. David Tyler, when owning Horse hammock, sent down to Tan- 
gier island to bring up Thomas Crocket to ascertain where the Virgi- 
nia line was, and when he came, Thomas Bradshaw and Littleton 
Bradshaw went with Thos. Crocket and David Tyler to where the 
stone is now, f of a mile North of Horse hammock, which has been 
removed and uplaid by these commissioners; and Thomas Crocket 
said that he was willing to make oath, to the best of his knowledge, 
that he stood within ten feet of the line of the state. There was no 
stone there then; and then, David Tyler afterwards had the stone put 
where Thomas Crocket said the line was. I was at the court of Prin- 
cess Anne when two vessels, one named Amelia Ann — and the other, 
the Ediston, one belonging to John Marshall, and the othtir to Tub- 
man Evans — were tried for dredging in the Maryland waters; and I 
heard Thomas Tyler testify in court on the trial of those two vessels, 
and he said that his father at one time, in that day, owned Horse 
hammock, and he wanted to know where his bounds were, and he sent 
for Thomas Crocket, as I have described. The trial of these two ves- 
sels were some 4 or 5 years before the trial of the Fashion, and were 
condemned, but I don't know where they were charged with dredging 
at. I believe the large stone in the Thoroughfare was put there, from 
what I have heard and from the size of the stone, to mark the boun- 
dary line between the states of Maryland and Virginia. I have heard 
of another stone on the East side of this island, at about 100 yards 
this side of Barn point, but I have never seen it. I think the West 
side of this island has not washed more than 70 or 80 yards since the 
war of 1812. 

Examined hy 31r. Jones. 

1 have heard of several lines between Maryland and Virginia across 

Smiths island, but have known of but two — those two which I have 

described were the only ones on which I have seen stone boundaries. 

The distance North and South between the two lines — the one in the 
24 



186 

Thoroughfare, and the other described by me — are, I don't think, more 
than li miles, I don't mean that distance from stone to stone, but 
the distance from the line of latitude of the one to that of the other 
is about 11 miles, I think, without having measured. I never heard 
Tommy Nelson at any time say that he had ever been in a survey at 
any time on Smiths island. 

(Signed) SEVERN BRADSHAW. 



Cbisfield, May 30th, A. D. 1872, 

The coEu'rs, pursuant to adjournment, met their meeting at the 
house of Johnson Evans, at Horse hammock, on yesterday, Wednes- 
day, the 29th inst., met this day at the telegraph and railroad office 
in Crisfield, at 10 o'clock, A. M., and proceeded to take the depositions 
as follows: 

Present — Thos. K. Whalton, justice of the peace for the state of 
Maryland, and county of Summerset, and Hon. Isaac D. Jones and 
Wm, J, Aydelotte, on the part of Maryland; and the Hon. D. C. De- 
jarnette, Col. Wm. Watts and Henry A. Wise, on the part of Vir- 
ginia, commissioners : 

Deposition of Capt. Wm. Sterling. 
Capt. Wm. Stirling was first called, sworn and examined : 

I was 61 years of age the 30th day of Nov'r last; I was born at the 
old Stirling place in Little Annamessex, and have lived there and 
near there ever since. I own land on the Westv/ard side of Ape's Hole 
creek, and on the East side of the road leading from Crisfield or from 
the Ashbu^y church to the hole, down to the hole. I am the son of 
John Stirling, and his father was named Travis Stirling, and his father 
was named John Stirling, I think, but am not positive, I recollect 
my grandfather Travis very well, having lived with him until he died; 
he was 85 when he died, and has been dead forty-five years; I was 
about 16 years old when he died. He said he had always lived on 
Little Annamessex; I have heard him speak often about the condition 
of the island from Cedar straits to Watts island, especially of the 
middle marshes. He said that they were once an island, and also the 



187 

middle ground was an island; neither was an island in ray recollection^ 
both being washed away before my memory. I don't recollect any- 
thing he said about the other islands of the Fox islands groupe, but I 
know myself that they have washed away a good deal in my remem- 
brance. Cedar straits have not widened much, if any, in my remem- 
brance, as there is but little tide through them. The Fox islands 
have washed away some good deal, I can't say how much on the West 
side, and about the same on the East side. I have been familiar with 
the waters of the coast of Fox islands, and between them and Watts 
island from my early boyhood. All on the West side of Fox islands 
there are numerous stumps, I can't say how large; and on the middle 
marsh bur between Fox and Watts islands, I have often fished and 
found large stumps. The shoals in 3 and 4 and five feet water have 
stumps, but there are none in the channels which in some places in 
the North end is 15 feet water. I think it is all of that but never 
measured, and in the middle channel there is not so much depth of 
water, but it is 10 or 12 feet through. I know that Watts island is 
a great deal smaller on the Eastern side, being exposed to the North- 
east winds. I think on that side next the house it must have washed 
away in my recollection 50 yards; there is no washing on the North 
end of Fox islands. There is a little island on the North end of 
Watts island, which has been there ever since I can remember, and 
may have washed away a little, but not much, if any. I never took 
much notice of the South end of the Fox islands. The south end of 
the Big Watts island has washed considerably; there is a thoroughfare 
between Big and Little Watts islands which, I think, makes that 
wash, as there is considerable tide there. Old Robert Parker married 
my grandfather's sister, sister of Travis Sterling, and was my grand- 
aunt. I was then about 3 years of age. 

Examined by Mr. Wise. 

I did not see the line run some years ago by Lieut. Michler, or 
G-en'l Michler, but am informed and believe that it passed the house 
of a colored man, named Severn Sterling, from a quarter to a half mile 
of my store 

Examined by Mr. Aydelotte. 

I never searched for any such marks of the line between the two 
states West of the Pocomoke river to the Tangier sound, and I have 
never heard of j^ny, 



188 



Examined by Mr. Wise. 

I never searched for any such marks, and I don't know of any per- 
son who ever did; and I know of no tradition of any line or mark of 
a line run from Tangier sound across the land and Pocomoke river. I 
don't recollect of ever hearing of a line run by Scarbroug and Calvert 

across the land from to Pocomoke river; and I don't recollect 

of conversing with Mr. Wise here present in the fall of 1871, about 
the line run by Scarbrough and Calvert, but I did converse with him 
then about the line run by Michler. I never heard of any line run by 
the two states North of Cedar straits, but all that I ever heard from 
the old people was of a line through Cedar straits, and I don't know 
what course it is said to have run from the straits: I do know Pitts 
creek, and have been past it, and I have always baen told that it was 
in Virginia, but whether it is or not, I don't know; I never landed at 
Pitts creek, but it is on the left bank of the Pocomoke river. I think 
that Pitts creek is Northeast from Cedar straits. 



He-examined by Mr. Jones. 

When I first knew Cherrystone creek, in the county of Northamp- 
ton, the Eastern bar at the mouth was all fast land, and now it is all 
washed away except an islund below the woods. 

(Signed) WM. STEELING. 



Deposition of Michael Somers. 

Mr. Michael Somers was next called, sworn and examined : 

I was 60 years old the 24th of this month; I was born in Little 
Annaraessex, on a tract called Cherry Hinton, and have resided there 
until some ten years ago, and then moved Eastward near Apes Hole 
creek, on a tract of land called "Frustration"; Cherry Hinton, nearly 
all of which I own, extends Westward as far as the pattent in your 
hands will show; and the copy of the patent certificate by the register 
of the Land office of Maryland, exhibited herewith the 20th day of 
April, 1682, for a part of a warrent to Colonel William Stevens, of 
Summerset county, in the province of Maryland, for 10,000 acres of 
land, dated the 1st day of March^ 1680, describing the land called 



189 

Cherrystone as lying between Annamessex river and Pocomoke bay for 
150 acres, a copy of which is hereto annexed; then, also, a like copy of 
the land called Frustration — 40 acres assigned to Francis Martin by 
Wm. Whittington out of a warrant for 2,700 acres to said Whiting- 
ton, warrant dated 20th October, 1694, and the pattent dated 10th 
March, 1695, describing a neck of land lying between Poconoke bay 
and Annamessex river, and near to Watkins point, as shown by the 
copy of the copy hereto annexed: Frustration extends to Apes Hole 
creek; I have never run or seen run the line of Frustration, but I have 
always heard that it ran to Apes Hole creek, and not to the bay of 
Pocomoke; the course from my house to Pocomoke bay is Southeast 
and East; I think that an East line from my house would strike Sykes 
island; I live a half of a mile South of'Lawson Shells, where stands a 
wind-mill, and Lawson Stone's house stands on the broad water of 
Apes Hole creek; the owners of the lands West of Cherry Hinton are 
first Mrs. Cullen, who lives on a place called Stirling's Good Luck; 
it belonged to my father; and there are Hamilton Moore's heirs, Mrs. 
Mason, a widow, and William Tyler, and that is about all except the 
old Tyler family, the heirs of Littleton Tyler, West and Southwest; 
they live, I think, on a tract called Price's Vineyard, but of that I 
am not certain; East of Cherry Hinton is a marsh where nobody lives; 
I own a part of it; Travis Sterling owned a part of it; it is called Cedar 
hammock, and belongs, I suppose, to his heirs; I own Oak hammock, 
a part of it; also Lapland, a part of that marsh; that marsh extends 
down to Pocomoke bay; the other lands don't extend to Pocomoke 
bay; it is all marsh on the Pocomoke bay; there is a tract of land 
called Watkins point N. East from where I live, and on the East side 
of Apes Hole creek, which I have understood was formerly called 
Johnson's creek; I don't know the names of other lauds further East 
on the Pocomoke bay; I have never heard of any tradition of any line 
having been actually run by any surveyor across the lower part of 
Summerset county between Tangier sound and the right bank of the 
Pocomoke river, before that run by Lieut. Michler a few years ago, 
say in 1859; that line struck my house on Jones island, and that 
house stood on a sand beach always called Old Island beach, now 
known as Biggin's island; the lighthouse now stands on the end of 
the sand bar which makes out from that sand beach, immediately on 
the North point of the mouth of Little Annamessex river. 



190 



Examined hy Mr. Wise. 

I have heard of a line between the states of Virginia and Maryland 
which ran through Watkins point, but whether the tract of land 
which is mentioned in thepattent before (mentioned) referred to called 
Watkines point is the point through which the state divisional line 
passes or not I do not know. I have heard of a line which calls 
for Watkins point. I don't know on which sound — Pocomoke or 
Tangier sound — it was located ; but certainly it was the general 
opinion with us that it was the point on Pocomoke sound. I had 
heard of no other Watkinses point; that is all the reason that I had 
for believing that was the point called for by the divisional line. I 
never knew any mark to be placed on that tract of land called Wat- 
kins point on the Pocomoke sound as and for a divisional line between 
the two states, and I have never heard any tradition of a mark or 
survey being made on that tract of land for such a line, except as I 
have stated that I had heard of a state line that was run, or was to 
have been run, to and from Watkins point. I don't know what the 
size of that tract is, but the pattent exhibited will show. Abraham 
Somers was my father, and further back I don't know. The name was 
sometimes spelt Summers. I spell my name Somers. Horsey Somers, 
of Accomack county, Va., was own cousin to my father. 

(Signed) MICHAEL SOMERS. 



Deposition of Hance Lawson. 

Mr. Hance Lawson was next called, sworn, and examined : 

Exami7ied hy Mr. Jones. 

I was 47 years of age the 31st last October; was born on a tract of 
land called Hill's Folly, between Little Annamessex river and Poca- 
moke bay. I now reside at the same place, within 200 yards ot where 
I was born. I own part of a tract called Bay-bush Hall; and part of 
a tract called "Agreement" joins Hill's Folly on the N. E., and Bay- 
bush adjoins the same on the South. Some of Littleton Tyler's 
heirs, and heirs of Hamilton Moore, and David Bird, and Thomas 
Bird, antl widow Mason, and lots of others, live at Bay-bush Hall, 
and not on Price's Vineyard, as Mr. Somers supposed. 



191 

[Here Mr. Jones exhibited a certificate from the land office of M'd, 
signed by Geo, W. Brewer, register of the land office of the , for 

a tract of land called Hill's Folly, surveyed for John Hill the 18th 
day of August, 1672, and patented to him the 24th day June, 1673; 
a copv of which is hereto annexed as an exhibit. It calls for one 
hundred and fifty acres on Back creek, near the mouth of Little An- 
naraessex river.] 

Mr. Lawson continued and said : This creek was called Back creek 
in the patent, and now is called Jenkins creek. 

[Mr. Jones then presented a copy of a patent for a place called 
Bay-bush Hall, containing one hundred acres, dated 6th April, 1682; 
warrant for 10,000 acres, as already stated, and herewith exhibited.] 

Mr. Lawson stated that this patent was for the Bay-bush already 
mentioned by him. 

[Mr. Jones then presented a certificate of a survey dated 1st June, 
1683, and patented 1st day of June, 1685, for a place called Mickle 
Meadow, 300 acres; a copy of which is herewith exhibited.] 

Mr. Lawson stated that he knew of a Mickle Meadow which he be- 
lieved to be that of this pattent, adjoining on the South side of Bay- 
bush Hall, and is South side of the mouth of Back creek, now called 
Jennings creek. The Cedar straits have been washed away considera- 
bly in my recollection on both sides; I mean the straits have 
widened — say, as near as I can, 50 yards, more or less. The Little 
and Big Thoroughfares, betvpeen Fox island and Watts island, have 
widened considerably in my memory; I have not been there for over 
two years; the Little has widened less than tho Great Thoroughfare. 
After passing Cedar island marsh we come to Cedar straits; then to 
a point of marsh which is now an island, that was formerly attached 
to Big Fox island; then to Little Thoroughfare; then to an island 
which was called, I think. Little Fox island; then to the Great Tho- 
rou<2:hfare; then to an island of marsh, the name of which I don't 
know; it may have been Little Fox island, I don't know; then the 
marsh continues, so that I cannot describe the islands of marsh and 
the little thoroughfares I don't know how far. But from the last 
island of marsh to Watts island is a considerable sheet of water — two 
miles wide, more or less. In which sheet I do not know whether there 
is an island or not, but do not think there is an island; and in this 
sheet of water is the Middle channel and the North channel from Tan- 
gier to Pocomoke sound. I know that the Thoroughfare from Cedar 
straits to Watts island have been greatly widened since my recoUec- 



192 

tion. I was generally acquainted with the old people who lived in 
this neighborhood, and have died since my memory. I knew King 
Nelson, and he resided not more than a quarter of a mile from where 
I now live, on the North side of Backer Jenkins creek. I think his re- 
ported age when he died was from 90 to 100 years; but he did not know 
his own age, but he was a very old man. I think he died 15 or 20 
years ago, and he was son of Zachariah or Sacker Nelson. He was 
always esteemed highly as a sober, truthful and correct man. I heard 
him say that his father was on Fox island during the revolutionary 
war. His father lived there, so he said; he told me that he lived on 
Fox island during the war. I never heard of his being a revolution- 
ary soldier; I uever heard from him or anyone else that he was or was 
not a revolutionary soldier. I know James T. Evans, an old man 
who on Smiths island; I think he once lived on old Jones island, 

some 12 or 15 years ago. I know his general reputation on Smiths 
island and elsewhere, and in this neighborhood, for truth and vera- 
city, and I don't think it is more than No. 1; and I don't think he 
stands very high for truth and veracity — he don't at all events with 
me, and not generally for truth and veracity; it is bad on Smiths 
island, where he lives. Never heard of any line being run by any 
surveyor across the lower part of Summerset county between Tangier 
sound and the right bank of the Pocomoke before that of Lieutenant 
Michler, a few years ago. 

Examined by 3Ir. Wise. 

I never heard of the character of James T. Evans being impeached 
in any court of justice. I never knew anyone but myself to impeach 
his character for truth and veracity on oath, and I did not know that 
I would b'^ asked the question under oath. 1 have heard a great many, 
not under oath, say that he would tell untruths. I have heard David 
Tyler, on Smiths island, say so. I have heard Hiram Bradshaw say 
so. I do'nt remember the names of any other persons I have heard 
say so, but have heard it generally reported by a great many. I mean 
by great many, several persons. I don't know how many. I don't 
know that I can name any others besides David Tyler and Hiram 
Bradshaw. I have never known him to be a witness in court. In a 
case where he is not swayed by interest, I would believe him under 
oath. I don't know that the man would swear to a lie anyhow, in- 
terested or not interested, but I have heard a number say that he 



193 

would tell yarns. I don't know that I ever heard any body say that 
he ever told a malicious or mischevious lie; but by yarns, I mean that 
I have heard he would tell untruths. I have never heard the tradition 
of the line run by Philip Calvert, of Maryland, and Edmund Scar- 
brough, surveyor-general of Virginia, across the land from Watkins, 
or any other point on Jones' island a straight and East line across 
Pocomoke river. I never heard that they had run any line on the 
Eastern shore between Maryland and Virginia. I have heard only of 
the Michler line. I have no knowledge or information of any marks 
of boundary line between the two States from Tangier sound across 
Pocomoke river. I have heard rumors of marks of a line on Smiths 
island; have heard more about it since this thing came up than ever 
before. I have paid no attention to a boundary line to search for 
one; for I believed there had been no line established between the two 
States; I never of any marks of a line from the old people on 

Smiths island. I have heard that John Marshall, who lives on Shanks 
island, was in Virginia, and paid his taxes in Virginia. I never 
searched for any marks of State boundary anywhere. 

(Signed,) HANCE LAWSON. 



Deposition of William Nelson. 

Mr. William Nelson was next called, sworn and examined : 

I was 64 years the 23d day of last February. I was born just 
below here on Jenkins' creek. I am the son of Thomas Nelson, 
usually called King Tommy Nelson. He died about 16 years ago. 1 
don't know his age, he did not know it, but said he was from 90 to 
100 years of age. Heard him say that he was born on Fox's island. 
His father's name was Sacker Nelson. My father said he lived with 
his father, Sacker, on Fox's island. I don't know what time. In the 
revolutionary war they remained there until they got their house 
burned by the British. He said that he and his father had to escape 
from the British by running into the bushes or rushes. After that 
they moved to the main. North of Cedar straits. He first moved to 
a place called Matthews creek, and afterward he moved to the Ham- 
mock down here, where Billy Lawson, on Jenkins creek, . He 
remained there until he bought a little lot up higher on Jenkins' creek. 
My father said that he was a stout boy, and nearlv fit to go into the 
25 



194 

army, and therefore had to skulk about to keep from being impressed 
by the British. I never heard him say that he ever was a soldier on 
either side of the revolutionary war, but on the contrary said he was 
not in the army. I heard my father say that he had heard his ftither, 
Sacker Nelson, say that he had seen the time when he could take a 
twelve fott fence rail and walk all the way from the main land across 
Cedar straits to Watts island. I never heard my father say anything 
about being on a survey of any line on Smiths island. Never heard 
my father say anything about a State line on Smiths island. Have 
never heard any tradition from any body of any line having been run 
by any surveyor across the lower part of Summerset county, between 
Tangier sound and the right bank of the Pocomoke river, before 
Michler's survey. I am not much acquainted with James T. Evans, 
on Smiths island ; knew him when he lived on Jones' island, but saw 
him very seldom, and heard nothing of his general character. 

Examined by Mr. Wise. 

I never heard of any line being run from Tangier sound across Sum- 
merset county and Pocomoke river by any one, surveyor or not, until 
Michler's survey. I was with him two days, from here to Jones island, 
to Berry Thomas' house, right back of it, say 100 yards, where the 
post put up by the coast survey was. I started with him, Michler, to 
go over to Smiths island, but a storm prevented, and he did his work 
on Jones island. I am told the line came out here at James Tawes' 
house, a little North of it. That line was run before the Crisfield or 
E. Shore K. R. was constructed. I don't know whether that line 
touches the end of the R. R. wharf or not, as I never sighted it. I 
never heard my father say anything about a state line on Big Fox 
island running near a tree on that island. My father never showed to 
me any tree, a gum or other tree, on Smiths island as a boundary line 
tree between Virginia and Maryland, and I never heard him speak of 
such a tree; have never heard of any such boundary mark on Smiths 
island. I was not mistaken in hearing my father speak of Watts 
island for Fox island when he said that his father told him he had 
seen the time when, with a 12 foot fence log, he could walk all the 
way from the main, at Cedar straits, to Watts island. I suppose it is 
now 5 or 6 miles from Foxs island to Watts island. I suppose it has 
been that distance ever since I could remember, only accepting the 
washing away about 200 yards at the South end of Fox island, I don't 



195 

know how much it has washed away on the North end of Watts 
island. I was never there but twice in my life, and know nothing 
about it; have heard my father say that the washing away on the 
West side of Fox island was very considerable. In going with him in 
a canoe opposite to where the house was, he showed me the place in 
the water where his well and others' had been; and then it was 150 
yards or more from the shore. My father had no education, and I 
have a little. John Nelson was the son of King Nelson, and about 
77 years of age when he died — about 5 years ago, 

(Signed) WILLIAM NELSON. 



Deposition of Thomas W Dougherty. 
Thomas W. Dougherty was next called, sworn and examined : 

I was 54 years of age the 22d day of last December; I was born 
about 2-2 miles from this place; and resided in this neighborhood ever 
since I was born. I think Jones and Cedar islands, South of Jones, 
which two islands form the mouth of Little Annamessex, have washed 
way all along the sound shore, 200 yards, in my remembrance; have 
heard of no line run by anybody across the lower part of Summerset 
county, between Tangier sound and Pocomoke, except the line run by 
Michler. I have known James T. Evans, on Smiths island; he is a 
cousin of mine. 

Examined by Mr. Wise. 

The Southwest point of Jones island is the North point of the 
mouth of Little Annamessex river. That point has washed away a 
good deal. I have heard Nathaniel D. Dougherty say that there was 
a peach orchard on the old Jones island, and as good a well of water 

as was in Annamessex. This whole neck of land, consisting of 

several parts, including Jones island, was called Annamessex — say 
from Kingston down to Cedar straits or Pocomoke sound. The chan- 
nel of Little Annamessex has not changed in my remembrance. I 
followed the water for 30 years up to the last three years. 

(Signed) THOS. W. DOUGHEETY. 



196 



Horse Hammock, Smiths Island, 

May 31st, A. D. 1872. 

The commission met at this place pursuant to adjournment on yes- 
terday at Crisfield. Present — Thos. K. Whalton, J. P. for the state 
of Maryland, and Hon. Isaac D. Jones and W. H. Aydelotte, com- 
missioners on the part of Md., and Hon. D. C. DeJarnette, Col. Wm. 
Watts, aud Gen'l Henry A. Wise, commissioners on the part of Vir- 
ginia, and proceeded to take further testimony. 

Deposition of F7'ancis Evans. 

Francis Evans was first called, sworn, and examined. 

Examined hy Mr. Wise. 

I am 64, in my 65 year of age; I was born on Smiths island, on 
Eogues point, which lies about half a mile below or South of the 
thoroughfare towards the N. end of the island; my father was John and 
my g. father Francis Evans; they both lived at the same place; I have 
heard some say the line between Maryland and Virginia was on the 
North part above Horse hammock, the great island about a mile from 
this house, and others said it was below Horse hammock; I have been 
shown a big stone last winter by Jas. T. Eavans, at Beaver hammock; 
I was shown a gum tree by Severn Bradshaw, when we were boys, at 
Cow hammock, which he said he was told was a line tree between the 
two states; the tree stood some time after that; I don't know how 
long, but I think I could go very near where it stood, as I had seen it 
otten; I never examined it particularly for any marks; I can't say how 
old I was when I first saw it, but I can state how Severn Bradshaw 
came to show it to me : We were about the same year's children, or 
the same age, and we were on what is called Cow hammock, or Cow 
ridge, or Orchard ridge — it was called by all three names; the gum 
was on Cow ridge, now owned by Severn Bradshaw; the reason we 
were there together was that we were fond of bird egging, and were at 
the trees — there were a good many trees on it then, and there are 
some around the hammock now; it is cultivated now by Severn Brad- 
shaw; I can't say how long the tree has been down; it was located 
rather at the lower end, but pretty much in the middle of the ham- 
mock; Severn Bradshaw did not tell me how he knew it; I have heard 



197 

other people talk of it as the line ; I have also heard of and seen a 
slab-like stone in the water about 15 or 20 yards or more from the 
edge of the marsh on Beaver hammock in Misters thoroughfare, East- 
erly from Troy island, which is the one shown me by Jas. T. Evans; 
I never was shown or heard of any tree, or stump, or stone, or other 
mark of a state boundary line on the lower end of Smith's island 
South of Horse hammock, but I have seen Gum island, where it was 
said The Gum, whether a tree or island was the name I don't know; 
it was the place of John Parks' residence; I never saw any mark there; 
it is the place where John Tyler now lives; I don't know whether that 
place lies North or South of this place; I have heard there is a stone 
on Barn point from those who live there; this I heard for the first time 
last winter. 

Examined by Mr. Jones. 

Severn Bradshaw told me that the gum on Bow island was a mark 
of the line between Maryland and Virginia, not that it was a line be- 
tween man and man. Severn Bradshaw is here present, and says he 
don't dout my statements, but don't recollect the time, nor do I, but 
it was more than 40 years ago. 

his 
(Signed) FRANCIS M EVANS. 

mark. 

Deposition of Severn Bradshaw. 

Mr. Severn Bradshaw desired to be re-examined, in order to state 
matters which he forgot and omited to state when first examined. 
He said : 

There were two large gum trees, and the only two large gum trees 
on the island at the time; the one stood on the Orchard hammock 
where I live, as described by me the other day; the other on Sassafras 
hammock, where Tubman Evans lives; I recollect both trees well. The 
tree where I live showed more visibly on the Chesapeake bay side, and 
the other on Sassafras ridge showed more visibly on the Tangier sound; 
we on the upper part of Smiths island thought the tree where I live 
was the state boundary line mark, and the people on Little Annames- 
sex thou2:ht that the tree on Sassafras hammock was the mark of the 
state boundary line. The one at my house was marked with several 



198 

notches on south side of this I am positive; whether the one on Sas- 
safras was marked or not I do not know; I don't recollect whether 
there were any notches on the north side of the tree at my house. 
Sassafras is Northwest of Horse hammock a considerable distance, 
and I can show it to you, it went by the name of Tyler's gum; both 
trees are now gone. I omitted to state fully, being hurried, all that 
I now recollect about what Tommy Tyler said in the trials of the ves- 
sels Amelia, and Ann, and Edenton. In addition to what I have 
already said, he stated that the line between the states of Maryland 
and Virginia, his uncle, Butler Tyler told him was run twice in his 
recollection; that he was said to be 100 years old when he died, and 
he has been dead at least 45 years. I have seen him, was nearly 
grown when he died, and was at his funeral. Tommy Tyler said that 
Butler Tyler had told him that at one time the line ran through his 
yard, at Black Walnut point, and at another time it ran a little be- 
low Drum point, on Tyler's creek, making a difference between the 
two lines of about 300 yards. This is all I have to add. 1 do believe 
that one or the other of these two trees has been recognized by the peo- 
ple on this island for more than a century back. 

Examined by Mr. Jones. 

My father owned where I live, at Orchard ridge. He made a will 
and devised it to me, and I was the first who built a house on it; my 
father's name was Jacob Bradshaw. The gum tree stood south of my 
house about 125 yards. My father's will is recorded in Princess Ann, 
the county seat of Summerset county, Maryland, and he lived on an- 
other part of the same land south of my house and the gum at a place 
called the " Forked Oak," and I know where it was said to have stood; 
it is about 41 miles Northwest of this place; that place is open to the 
bay and is not washed away badly; the orchard and cow ridges were 
once the same thing, and are now separated by a small drain. The 
Orchard Ridge is on the East side and the cow ridge is on the West; 
they lie nearly together, N. and S. at the Western mouth of the Mis- 
ter's thoroughfare which mouths into the bay; the forked oak was on 
Cow ridge, and a round cedar post marked with 4 notches on each 
side, was placed where the oak was said to have stood, to mark a pri- 
vate boundary. About 3 or 4 years ago the cattle broke the post off, 
by rubbing against it; my father always paid taxes in Summerset 
county, Maryland, and so have I; that is North of where Butler Ty- 



199 

ler used to live all of two miles; thirty or forty years ago, there was 
scarcely any talk about the line of the two states on this island. The 
taxes were small, and the oysters in the bay we-e not counted of great 
value, and we oystered in the creeks; but since dredging commenced 
about 20 or 25 years ago, oysters have become valuable, and people be- 
gan to look more closely after the line of the two states. I, among 
others, have looked more closely to where the line is; I used to think 
but very little about the lines of the states; my business was to get 
oysters where I could, in Virginia or Maryland, and I was not intimi- 
dated; since that time I cannot do so; a man can't tell, now-a-days, 
on this island, whether he is in one state or the other. My father and 
I and the people up there voted and acted as if in Maryland. The 
first election district on this island was laid oif and called No. 14, 
about 40 years ago, before I was a voter, as I think. Then it was 
held at the old church where I live, by Solomon Evans and John Ty- 
ler, who lived at this place, and old Capt. Jno. M. White. After a 
few years the district was abolished, and the voters had to go to Brink- 
ley's, on Annamessex. The election district on this island was re- 
established in 1853, and is now district No. 7. The first and present 
districts are of the same bounds, both including Horse hammock and 
the proprietors and residents of Horse hammock have been from first 
to last judges of election. I, myself, have been judge of election and 
clerk of elections, and for 4 or 5 years past have been a register of 
votes, and I have been a justice of the peace for Maryland for 2 years. 
The first registers of ^votes for this island for Maryland, were David 
Tyler, Hainey Bradshaw and William Evans, of John. Then John 
Evans, son of Johnson lived here at Horse hammock; I think he was 
registered as a voter; I was register of voters last fall, and think John 
Evans, residing here, was registered and voted. There have been four 
public school places of Maryland on the island. The first was North 
of the thoroughfare; one at Eogues point, West, N. W. from here; 
and one on Oak hammock, near Alick Tyler's store. Northwest of 
this place, and there was another on North end, north of this place. 
There was no school at Horse hammock or South of it. Generally 
the children at Horse hammock have attended the public schools of 
Maryland. There have never been any voters registered in Maryland 
South of Horse hammock, and none due West of it; some at Drum 
point, and some at Hogs neck, have been registered in Maryland; none 
South of Horse hammock, and none as far South as Horse hammock. 



200 

except those at Horse hammock. I have considered the voters on the 
upper end of Hogs neck, as ftir South as John Tyler's residence to be 
in Maryland. 

Be- examined hy Mr. Wise. 

I do not know whether the proprietors of Horse hammock voted in 
1833, in 1835, in 1837, 1839, 1841, 1843, in Virginia, for a member 
of congress or not, I believe that all the old residents on this island 
used to think that Horse hammock at this house we are now in was 
in Virginia. I know that some have said that Horse hammock was 
in one state and some in the other, but I have heard the old people 
say generally that it was in Virginia; I have heard that old Uncle Solo- 
mon Evans had John Tyler, then living here, made a magistrate, about 
1835. I hai^e no knowledge of Horse hammock ever being claimed 
for Maryland before that time. I am a member of the Methodist 
Episcopal church, and sometimes conduct the services at our church 
as an exhorter. 

(Signed) SEVEKN BRADSHAW. 



Deposition of Benjamin Bradsliaw. 
Benjamin Bradshaw was next called, sworn and examined : 

Examined hy Mi'. Wise. 

I am about 48 years of age. I was born just above where Alick 
Tyler's store is. I now live on Drum point, on Tyler's creek. I have 
found a stone at the mouth of a little creek, near '' The Barn," a 
point so called, as I am told. The stone is in the water, about knee 
deep, about 40 odd feet, as measured by my canoe, from the shore. 
It appears to be in three pieces, it is jammed all together, and is so 
in the mud that I cannot say whether it is one stone or not ; the 
whole, as it appears, seems to be as big as this table ; say about three 
feet square — not exactly square, but rather diamond shaped. Its 
color is light, but it is covered with mud, and I cannot say positively 
what its color is; the bottom is a sticky clay. There are stumps 
around it — some right big ones, and some small ones. I can't say of 
what wood. When the commissioners were here last fall we were 
talking about the stones at the church, and it was thought best to 



201 

stake them off when found. Albert Evans told me then where to look 

for it at " The Barn," but I did not search for it then. Day before 

yesterday Mr. John Tyler told me that you, Mr. Wise, desired to find 

it, and I searched for it yesterday, and found it as I have described. 

I can't say how far it is down in the mud — it was knee deep from the 

top of the stone — but at low water to-day will be nearly bare. The 

stone in Misters thoroughfare, South of Frog island, at Beaver 

hammock, I saw myself 25 years ago. I never was told, or enquired, 

whether it was a boundary mark or not. I know nothing about the 

line of the States. Have seen the Beaver hammock stone often since 

I first saw it. 

his 

(Signed) BENJAMIN tx! BRADSHAW. 

mark. 

Deposition of Stephen T. Dies. 
Stephen T. Dies was next called, sworn and examined : 
I am 29 years of age. Born on Smiths island, at a place called 
North End, where Laban Evans now lives — north of this place about 
three miles. Caleb Evans^ Capt. John Evans and myself, were catch- 
ing terrapins the other day, and we cp,me across a large stone 
in the water near Cow hammock — some call it Cow ridge. I 
first saw it, and we went back to it, and looked at it, in about 
two feet water, the tide up. I think it is from 6 to 8 feet long, and 
about 4 to 5 feet across it ; it was full of oysters and moss, and we 
could not tell what sort of a looking stone it was — it was surely stone 
of some kind. It is about a N. West course from here, and a West 
course from the stone at Beaver hammock. It is just off Cow Ridge, 
on the Southern side of Misters thoroughfare, on a hammock just 
North of Hog Neck, and separated from what is now called Hog 
Neck, where Capt. John Tyler lives, by a small thoroughfare, about 
a mile above where Capt. John Tyler lives. I have got marks for it, 
and can go to it at any time; did'nt see any stumps exactly around 
it, but some outside of it, I guess in 15 or 20 yards of it, in the water. 
The stumps were about a medium size. We were about the stone and 
stumps about a quarter of an hour. I know nothing of the State 
line — have heard some talk about it. All of our people, the oldest, 
said it was somewhere about the Mister's thoroughfare. I can't say 
how deep that stone was sunk in the Thoroughfare. This stone is 
about due west from the stone at Beaver hammock. 
26 



202 



Examined by Mr. Aydelotte. 

I have no instrument by which to judge of the course ; but I am a 
sea-faring man, and have always been following the water, and can 
use the compass as well as any man, and can judge of course. I 
judge by the mouth of the Potomac and an East and West line 
cuts the mouth of that river and Misters thoroughfare. That tho- 
roughfare is opposite, on an East course, to the mouth of the Poto- 
mac. The stone at Beaver hammock is near the South side of 
Misters thoroughfare, and on the North side of Big Thoroughfare, 
at a place called the Bottom, I have heard of a stone at "The 
Barn" point many years ago, ever since I was a boy, but have 
never seen it. "The Barn" from the stone I have found in 
Misters thoroughfare is about East, though I have never cited the 
course by the compass. I can see the mouth of the Potomac from 
the mouth of the thoroughfare, both points of the river, and I have 
cited it before with the compass. I can write but little, and prefer 
my name be written. 

his 
(Signed) STEPHEN T. M DIES. 

* mark. 

Deposition of Johnson Evans. 

Mr, Johnson Evans was next called, sworn, and examined : 

I am 58 years of age. I have been off and on living at Horse ham- 
mock about 6 years. I was born on Smiths island, and have been 
living there ever since. I bought this place called Horse hammock 
from John Marsh; he bought it from his father-in-law, Peter Evans; 
Peter Evans bought it at auction at a sale under a mortgage from 
John Tyler to Peter Evans, about 27 years ago. Since I bought it I 
have paid taxes in Maryland, and my son John, who was joint owner 
with me of the place, paid his taxes in Virginia. I have heard that 
about 45 years ago taxes were paid in Virginia. I have heard that 
John Tyler, when he owned it, paid in Virginia; but for the sake of 
being a magistrate in Maryland, he paid his tax in that state, Peter 
Evans, I am told, paid his tax in both states. Peter Evans now lives 
at Chesconessex creek, in Accomack county, Virginia. I have heard 
that Horse hammock was always considered in Virginia until John, 
called Jacky Tyler, was appointed a justice of the peace in Maryland. 



203 

I have heard for many years of a stone on the East side of Smiths 
island, about three-quarters of a mile or a mile North of this house 
at Horse hammock, at which children John L. Tyler, William Tyler, 
and Thomas Tyler had been taken when young and one or more of 
them whipped, and one or more of them ducked, to make them re- 
member it as a boundary stone; a boundary of what I don't know; 
whether of two states or two owners of land I don't know. I can tell 
of stone in the Mister's thoroughfare. Capt. Browne, of the Treda- 
gar tug, sent me a paper with a drawing of the two stones on it — of 
the one taken up by you commissioners the other day, and of the 
thoroughfare stone, and I was looking at the papers when Captain 
Henry Dies came up, and I inquired of him whether he knew of any 
such stone. He replied that he did; and the following Monday morn- 
ing he and Albert Evans and I went to the stone in the thorough- 
fare, and he said, when he first saw it, it was not broken; he went to 
it directly. When I saw it that day it was broken into two pieces, 
about 18 feet apart. I think it was broken by the ice, but don't know. 
Last fall, in October, I went with Mr. Wise, Mr. Aydelotte, Captain 
Brown, Captain Drummond and others, to the stone a mile or so above 
Horse hammock, and showed it to them, and they sighted it by a com- 
pass. The same day we went to near the stone in the Thoroughfare, 
but the water being thick we could not find it then; but it was 
found last week in two pieces, as I have described. The other stone 
at Cedar hammock was taken up last week and examined and replaced 
in the spot where it was taken from. That was the same stone at 
the same place three years ago. 

Examined by Mr. Aydelotte. 

I have no knowledge of what the true boundary of Virginia and 
Maryland is on Smiths island. I have doubts that the stone removed 
the othpr day is the boundary stone between the two states, and don't 
believe it is now. I have — my grandfather Parks say that at one 
time the state line ran between his house and kitchen apart, at the 
place where John Tyler now lives in Hog neck, and that place is in a 
line with the stone which was removed the other day. But I was told 
afterwards that Tommy, called King Nelson, was on the island at the 
church at one time, and told the people then there that the state line 
ran thron^xh the Mister's thoroughfare. I supposed that the stone 
and John Tyler's house would show the line between the two states; 



204 

but my belief now is that the stone in the thoroughfare marks the 
line between the two states, because it is the big stone, and King 
Nelson stated that the line ran through the thorouschfare. 



Examined by Mr. Jones. 

The stone we removed is the beginning bounder of the land sold by 
Marsh to me, as stated in the deed, and also in the deed from John 
W. Evans to me. I sent both the deeds to Princess — , in Maryland, 
to be recorded, because I did not want to pay taxes on the land in 
both states, and I saw no prospect when the line between the states 
would be run. 

his 
(Signed) JOHNSON ^ EVANS. 

mark. 

Deposition of John Tyler. 

Mr. John Tyler was called, sworn and examined : 

I am 43 years of age; I live in Hog neck, at the place where old 
Mr. John Parks lived, which is North of a West line from this place. 
I have always thought since I have lived there that I lived in Virgi- 
nia ; I pay taxes in both, because I am called upon to pay 
taxes in both, because the line, as I have always heard, runs through 
my yard ; I have heard that from my earliest childhood. I 
have heard that it was the place where, in old times, runaway mar- 
riages were celebrated — the ones from Maryland were married in the 
kitchen, which was in Virginia, it is down now, and the ones from 
Virginia were married in the great house, that being in Maryland. 
None have been celebrated there in my day. Joshua Thomas usually 
married them; I know but little about the line; I have voted here on 
this island for candidates for office in Maryland; I went to the polls 
and voted for Mr. Commissioner Waters for clerk of the court 

of Summerset county, Maryland, and my name is on the register's 
list, but I never applied to be registered, and I have voted at Tangier 
island and at Onancock, in Virginia; in 1855 I voted for Mr. Flour- 
noy against Mr. Commissioner Wise, of Virginia, for the office of gov- 
ernor of Virginia; I was a Know-nothing then; I now take out my 
oyster licence in Va,; I saw the gtone above Barn point about 15 yearg 



205 

ago; I never heard of the stone at Beaver hammock until within the 
last few years. 

(Signed) JNO. TYLER. 



Crisfield, E. S. Md., 

Monday, June 3d, 1872. 

The commissioners met at this place this day in pursuance of the 
adjournment on Friday last. Present — Thos, K. Whalton, justice of 
the peace for Summerset county, Maryland, and the Hon. Isaac Jones 
and Levin L. Waters, Esq., commissioners on the part of Maryland, 
and Col. William Watts and Henry A. Wise, commissioners on the 
part of Virginia. Absent — Mr. DeJ arnette of Virginia, and Mr. Ayde- 
lotte of Maryland. 

They proceeded to take the following depositions — to-wit : 

Deposition of Henry Dies. 

Mr. Henry Dies, of Crisfield, was first called, sworn, and examined 
by Mr. Wise : 

I am between 57 and 58 years of age; was born on Tangier island; 
in 1835 I moved to Smith's island, and lived there until February last 
except 3 years. The name of my father was Daniel Dies; he died 
about 17 years ago. aged about 70 years; my mother's maiden name 
was Esther Parks, a daughter of Joby Parks, who was my grand- 
father; he lived on Tangier island. I moved to this place on Smith's 
island, called N. end, S. E. from the church, close upon the tho- 
roughfare. I knew old Mr. John Parks, a brother of Joby Parks, my 
grandfather, he was my great uncle; Mr. John Parks lived on a place 
called Hog neck, on Smiths island. I have heard in times past from 
the old people on Smith's island that when the people on that island 
desired to be married from the state of Maryland that the Rev. Joshua 
Thomas, who was in those days a Methodist local preacher on that 
island, would meet them at that place and marry the couples of Ma- 
ryland in the dwelling-house of my uncle John Parks, and when any 
couples from Virginia desired to be married he would meet them at 
the same place and marry them in the kitchen, that being then con-, 



sidered in Virginia; I do not mean the runaway couples, but those 
who were regularly married according to the laws of their respective 
states. I don't recollect of ever hearing of any gum or other tree at 
that place marked or recognized as a state line; the house and the 
kitchen were from 20 to 30 feet apart, more or less. Joshua Thomas 
was the standing, well-known clergyman, who performed the rites of 
marriage ceremony on that island; I have heard of his biography, pub- 
lished in Philadelphia and written by Kev. Adam Wallace; I have 
handled the book. About from 1835 to 1840 I was-gunning in Mis- 
tars thoroughfare, and run my skiff upon the top of a pretty large 
stone near the edge of Beaver Hammock marsh; I think when I first 
saw it it was not further from the edge of the marsh than 15 or 20 
feet; I saw it several times afterwards, but never noticed it again par- 
ticularly until, I think, year before last; when I first saw it it was in 
the water, and I saw but one piece, and when I saw it in the year be- 
fore last it "was in two pieces; the pieces were, I think, from 10 to 15 
feet apart; it may have been that when I was first there that there 
were two pieces then, but I saw but one then, and two afterwards, as 
I have said; the last time I saw them they seemed to have been broken 
the one from the other, for they looked to be of the same quality of 
stone; I never saw the one or two at low tide when bare. Mr. Johnson 
Evans, of Horse hammock, year before last brought to me a paper 
which had a written description and drawing in pencil of the shapes 
of these two stones, and he inquired of me whether I knew where to 
find two such stones. I showed him where they were, and found both, 
but that was the first time when I knew there were two at that place; 
they are about South by East from Tray island about half of a mile. 
The only other stone besides these two was, that I knew of, is that 
lying from a half to I of a mile North of Horse hammock house at 
Cedar hammock. I first knew of that last-mentioned stone in 1840, 
I think. There was an old man named John L.Tyler; he said he was 
called on a line there, whether between the states or between private 
individuals who claimed the land I don't know, but he said he was a 
small boy, and he was too small to whip, and he was ducked; he was 
thrown into the creek, and thought they were going to drown him to 
make him remember the boundary; he was then about 40 or 50 years 
of age when I heard him say this, and has been dead all of 15 or 20 
years; he was the father of Alick Tyler, and lived at Oak hammock, 
where Alexander Tyler now lives; it is near Black Walnut point, to 
the North of it, just by a windmill. Drum point and Black Walnut 



207 

point are pretty much all one; there is another Drum point on the N. 
E. end of Smith's island; the East and West line which ran between 
John Park's house and kitchen would pass in say 100 yards of Park's 
ditch, which is S. of Tylers ditch, and it passes in say I of a mile from 
Walnut and Drum point, in ^ of a mile South of them. 

Examined by Mr. Jones. 

The place called Pittscraft my old uncle Laban Evans told me laid 
South of Misters thoroughfare down to the Md. and Virginia line. 
Cow ridge, I think, as it was then called, laid East of Levins creek, 
which emptied into the thoroughfare to get into the bay, and its 
mouth is about a mile from the bay. The Cow ridge lies between 
Levins creek and the thoroughfare, to the Eastward of Levins creek 
and South of the thoroughfare; it is a long ridge. 

his 
(Signed) HENRY X DIES. 

mark. 



Crisfield, E. S. Md., 

June 4th, 1872. 

The joint commission met this day, at this place, pursuant to ad- 
journment yesterday : 

Present— Hon. I. D. Jones, Wm. J. Aydelotte, Col. Wm. Watts 
and Henry A. Wise, Esq'r, and proceeded to take the following depo- 
sitions : 

Deposition of Edward Taws. 

Edward Taws, being first affirmed, was first examined. 

Examined by Mr. Jones. 

I am near 51 years of age; I was born in the lower end of Little 
Aunamessex, from Jones' creek down towards Cedar straits, and South 
of Little Annamessex river, is called Little Annamessex, to distin- 
guish it from North between Big and Little Annamessex called Big 
Annamessex. I have lived in Little Annamessex neck ever since I 



208 

was born; my first occupations were those of mariner, and catcliing, 
and buying, and selling oysters; I ran oysters first from York river 
and Cherrystone, and afterwards from Ape's Hole creek, and Little 
Annamessex river. From my earliest recollection to about six years 
ago, the people North of Pocomoke, at Ape's hole, have always oys- 
tered North of the channel of the Pocomoke sound, without being ap- 
prehended. There never was any strict attention paid to where oys- 
ters might be caught, on either side of the line between the two states, 
and no one catching oysters was apprehended or disturbed until the 
dredging laws of the two states began to be enforced. Tommy or 
King Nelson I have heard say that his father, Backer Nelson, owned 
Fox island. He said his father told him the islands of Fox island 
group were once nearly all joined together down to the Southernmost 
point of those islands, now called South end; he said he told him he 
thought he could have taken a fence log and walked from Cedar 
straits to South end, so-called. He also said that his father stated 
there was in his day a marsh island between the South end of Fox is- 
land, and the North end of Watts island. He said it was washed 
away; have fished around Fox island a good deal in the season of fish- 
ing; on the Tangier sound side they have washed away a good deal, 
all the islands wash most on the Western sides; I lived near King 
Nelson all my days, and in about 150 yards of him during his latter 
days I have heard him say about the time the dredges were first taken 
in Pocomoke sound, say about from 20 to 25 or 26 years ago, that the 
— between Maryland and Virginia, ran right across Fox island, close 
by where old Johnny Mason's house stood, the father of Middleton 
Mason, who moved to Onancock, in Virginia. He told me the well 
his father used water out of, off his residence on Fox island, was then 
at the time of his statement about 150 yards on the west side in the 
water. I have never heard of any tradition of a line run from Tan- 
gier sound, North of Cedar straits, to the West bank of Pocomoke 
river, nor have I heard of any marks of any such line across the Lit- 
tle Annamessex neck. I have heard only of the line named to me by 
King Nelson across Fox island. 



Examined by Mr. Wise. 

Tommy or King Nelson told me he lived on Big Fox island; it was 
on the West side of that island where the well was spoken of as in 
the water; and Johnny Mason, the father of Middleton Mason lived, 



209 

I think, about the same place on Big Fox island. There is an island 
North of Cedar straits, and north of Big Fox island, called Cedar 
island marsh. The ledges and muddy marsh are to the East of Big 
Fox island. The Southern island of Fox is called Little Fox island. 
Both, Big and Little Fox islands, are now cut through by the waters 
making as many as four islands where were but two. The Big tho- 
roughfare when I remember first, ran as it does now, between Little 
and Big Fox island. I didn't catch oysters but bought them in Cher- 
rystone and York rivers. I never heard King Nelson say that with a 
fence log he could have walked from Fox island to Watts island, or 
say that his father said so. Have never heard of a line run over 200 
years ago across the Pocomoke from Tangier sound to the ocean, by 
Scarbrough and Calvert. I have heard of a line between Virginia 
and Maryland on the Eastern shore, but not across Little Annames- 
sex neck. I have gone up the Pocomoke river, not very often though; 
I was never shown where the line crossed the Pocomoke. I know 
where Pitts wharf is on the Pocomoke. Sykes island is nearly, as I 
Bee from the coast survey chart, now shown me by'Mr. Wise, is due 
East from Cedar straits, and the North part of Sykes island is North 
of Cedar straits, Pitts wharf is higher up, so-called Pocomoke river, 
than Sykes island, and I don't know whether that wharf is north of 
Cedar straits or not; I don't know where the Virginia and Maryland 
line borders on the Pocomoke river, but I have heard that the line is 
somewhere near where the widow of John N. Dennis, decjd, lives. I 
never heard of the Virginia and Maryland line crossing the Pocomoke 
river, but I have never heard of a line between Virginia and Maryland 
which touched the Pocomoke river. 

Be-examined hy Mr. Jones. 

1 have heard of Rock Hole creek which lies on the North side of 
Little Annamessex, and of Sand creek which lies on the Southside 
thereof between it and Cedar straits. 

(See patent to James Gray in 1701.) 

I know nothing of Persimmon hammock. I was never shown any 
State line marks on Fox's islands, 

(Signed) EDMUND TAWES. 

27 



210 / 

Deposition of Clement R. Sterling. 
Clement R. Sterling was next called, sworn and examined. 

Examined by Mr. Jones. 

I am either 64 or 65 — born 1807, 1st June — I think 65. Born 
down the lower end of Little Annamessex, and always lived in that 
neck. I know nothing of the Virginia and Maryland line myself, and 
only what I have heard folks say. I always heard that the line run 
from Horse hammock East to Watkins point, across to Ham town, or 
Chincoteague, or somewhere there, according to what the old people 
said. Michler was at ray house 7 days — I went with him to Ape's 
Hole when he run the line. Old man King Nelson I never heard say 
any thing alpout the line; but have heard him talk about Fox islands, 
and how far he could go with a fence log. 1 have heard him say that 
he could come all the way from Watts island to Annamessex with a 
fence log, and jump across it. I heard him say there was a peach 
orchard on Jones' island, at the North point of Little Annamessex, as 
far out as the bar, somewhere near where the lighthouse now stands. 
I can recollect back about 50 years, and that point has washed away 
half a mile in that time. I never heard of any line being run except 
by Michler, and he began at the sea side and came this way. I was 
with him afe Somer's Cove and Ape's Hole landings. 

Examined hy Mr. Wise. 

I was with him at Somer's Cove while he was boarding at ray house, 
and the line came out at James Taw's house, at the head of Somers 
Cove, North of the dwelling, less than 50 yards North, down to the 
landing. 

(Signed) CLEMENT E. STERLING. 

Note hy Governor Wise, following deposition of Clement R. Stirling. 

I am informed by Mr. Aydelotte that a patent ought to be found 
from Virginia for part of " Troy Pointy" owned by John Mason, the 
extreme Northeast main land of Accomack, a large body near to Sandy 



211 

HilJ, part in Accomack county, Virginia, and part in Worcester 
county, Maryland, all now occupied by Judge John R. Franklin, who 
now pays taxes in both Maryland and Virginia. 

Deposition of John Spence. 

' John Spence was next called, sworn and examined : 

Examined by Mr. Wise. 

As far as I know and am informed I am in my 77th year of age; I 
will be 77 on the 25th day of December next. My age is not recorded. 
I was born in Hog Neck, on Smiths island. I was born in a house 
owned by my uncle, John Parks, and on the land where he resided, 
and he lived where John Tyler now lives. Hog Neck ran up North to 
a creek called the Head of the creek, which used to be my boat 
harbor in the time of the British war. Hog Neck laid North and 
West of South Point. It laid North and South, lengthwise the 
island, on the Chesapeake bay. Tylers creek is called by that name 
up to Sheep hammock, and thence it lies North up to Tyler's ditch. 
Park's ditch lies to the Westward of Tyler's creek. David Tyler and 
Butler Tyler were the original owners of all the land of Oak ham- 
mock and Horse hammock, clean down to Drum point, when Aleck 
Tyler and John Wesley Marshall, Thomas Bradshaw, Stuart Evans, 
and one of Walter Marsh's sons, and Ben. Bradshaw, and Tubman 
Evans, who lives close to the Gum, now live. From John Parks' 
house to Drum point was near East by North, from a balf to three- 
quarters of a mile, as near as I can guess. John Parks was my 
mother's own brother, and my mother and father lived on his land, to 
the Westward of his house, on the Chesapeake bay shore. When I 
was quite a boy a dispute arose about where the line of Virginia and 
Maryland ran. They said that the law of Virginia forbid Marylanders 
from skiffing and gunning in Virginia, and several old people were 
called together to say where the line was. Richard Evans, who lived 
at Kedges straits, and who was called King Richard because he was 
best off I suppose, John Parks, an old man, Jacob Bradshaw, who 
was quite a young man then, met at old uncle John Parks, where 
young John Tyler now lives, and uncle John Parks said that the State 
line ran between his dwelling-house and his kitchen. I was then, I 
think, but am not positive, about IS or 1.9 years of age, I followed 



212 

the water and loved gunning, and had a skiff, and the noise scared 
the geese and other wild fowl of a night. My uncle got mad about 
my skiff, and Jacob Bradshaw had a fowling point called Goose har- 
bor, and uncle King Richard had a fowling point called Fogg's point, 
where the lighthouse now stands, and that called them to meet about 
my skiffing. There was. some contention about the skiffing, and they 
came down on uncle John Parks', on whose land I lived, about my 
skifiQng, and they all agreed that was the line. Neither one said that 
that line between the house and kitchen was not the line. I stopped 
skiffing, and that line was always respected by me and regarded by me 
as the State line. I don't recollect of hearins: about anv marriaares 
at the place; but the dwelling house was in Maryland, and the 
kitchen in Virginia, and that line was always upheld by us on the 
island as the line between the two states. I know where Cow ridge 
used to be; I always called it battle ridge. Old uncle Solomon Evans 
always owned it; it lies to the North and Eastward side of the Little 
Thoroughfare, next to the Barn cove and Whits cove; Terrapin sands 
is still above to the Northward of that. The reason they gave it the 
name of Battle ridge was, that some of the boys went down to dig a 
cow-hole, and they got to disputing and fighting, as I am told. There 
was no stone or tree or other mark on the line said to be at uncle John 
Parks' house. I never heard of any mark of a state line except a 
gum tree where Tubman Evans now lives, and a stone at the mouth 
of the Little Thoroughfare at the end of Otter island. Otter island 
is, say 100 strides from the main marsh of Whites cove, and Barn cove 
is about, say half a mile off on the Sound side. I have seen the stone; 
it was not free stone, and was not flint stone, I think, but was like 
any other stone washed deep in the ground; I mean to say that it 
looked as if buried deep in the ground and by washing had got rusty 
and mossy; but was like a ridged coffin, and looked to be a pretty 
large stone; the old people always told me that it was a state line 
stone. Horse hammock, where the house stands, was always in Vir- 
ginia as long as I remember. I left Smiths island 27 years ago the 
14th day of last November past; I lived North of John Parks' 
dwelling-house^ and always paid taxes in Maryland. I don't remem- 
ber that John Parks ever paid taxes; he could go from one house to 
the other, so they told me. South point and Sheep hammock, up to 
Fishing creek, always paid taxes in Virginia. I can't say where the 
people who lived where Johnson Evans now lives on Horse hammock 
paid taxes; old man Jakey or John Tyler owned it until he run 



213 

through it. I have always heard of a stone about a mile or three- 
quarters of a mile North of Horse hammock, on the East side of 
Smiths island, the one I have described as Otter island, which was 
put there to mark the state line, as they told me. The old man Solo- 
man Evans, who used to own the places I am telling you about, is 
dead. John Parks died before I removed from Smiths island to Sykes 
island, where I live now; I think he died about 31 or 32 years ago, to 
the best of my recollection. I think he told me a short time before 
he died that he was 82 or in his 83d year of age; he was a very old 
man. That is about all I know, and these things which I have told 
are very plain in my mind — as plain as my fingers. I have seen the 
gum tree at Tubman Evans'; I can't say how long it is since I saw it 
last, and can't say whether it was cut down or rotted down. 

Examined by 3Ir. Jones. 

Otter island is about half a mile or three-quarters of a mile North 
of Horse hammock. As far as I remember back, John Tyler lived at 
Horse hammock house; he lived there before Peter Evans during the 
war of 1812; I can't say how long he lived there; he was a justice of 
the peace once, and I think it likely he was, and I think he was while 
he lived there. No family then lived South of John Parks' house on 
Hog neck. There was Shank's, where John Marshall lives. Horse 
hammock, and one family on Fishing creek. Two families then lived 
at Shank's — Billy and Dicky Evans; the old man's son Dickey lived 
at Fishing creek; a Hoffman afterwards lived South of John Tyler. 
I havn't been there for some years; when I have gone there it has 
been at the upper end to church. There was first John Parks and all 
South of that; then where young Dickey Evans — at Fishing creek, 
Billy and Dickey Evans at Shank's, Jackey Tyler at Horse hammock; 
and these are all that I remember South of John Parks' house at that 
day. Shank's families were about two miles South of John Parks'. 
I did not know any ridge called Dogwood ridge, and never heard of 
Pitcraft. I knew Tommy Tyler, son of David, and the land he lived 
on was called Drum point, on Tylers creek. Where I lived on Smiths 
island, boating generally was our living — trading in oysters mostly. 

Re-examined by Mr. Wise. 

When I first began the boating business there was but very little 
trouble about the place where we oystered. We first bought oysters 



214 

at Nanticoke and ran them to Washington. The Yankees came in 
larger vessels and gave higher prices, and drove us out to the Western 
shore of Virginia. We bought and carried, but didn't catch oysters 
generally. Sykes island, as far as I can remember, has always been 
in Virginia; it lies about due East from Apes hole. Rich hammock 
is North of John Parks' house. 

his 
(Signed) JOHN X SPENCE. 

mark. 



Crisfield, Maetland, June 5th, 1872. 

The joint commissioners having adjourned on yesterday to meet to- 
day at Smiths island, to visit two stones — one at the mouth of a creek 
off " The Barn," and another on the West side of the island off the 
shore of the upper part of "Hog Neck" — but the wind being very 
liigh, and rendering the work impracticable on the island, they as- 
sembled to-day at this place — 

Present — Hon. I. D, Jones, Wm. J. Aydelotte, Esq., Col. Wm. 
Watts, and Henry A. Wise, Esquire. 

And they proceeded to read numerous patents of Virginia for land 
at and near divisional line as therein called for of which the follow- 
ing were read and noted, and they proceeded to take the depositions 
of the following witnesses : 



Deposition of John W. Evans. 

John W. Evans was first called, sworn and examined : 

I am 34 years of age last April, 1872; born on Smith's island, 
where Benjamin Evans now lives; I was when a small boy shown a 
gum tree which stood on Old Orchard or Cow ridge, a little South of 
Misters thoroughfare, where Severn Bradshaw now lives; I have often 
swung in a swing on that tree when quite a small boy, and was always 
told when swinging one way that I was in Virginia, and when the 
other way I was in Maryland. The tree is now gone, but the stump 



215 

is there now, just the top of it above ground ; I searched for it last 
Saturday, found it, and have brought some of its pieces to this place; 
I am positive that is the stump of the gum tree which I swung on, 
and which I was told was the line tree between the states of Virginia 
and Maryland in my early boyhood, A stone was lately found as I 
am told by Stephen T. Dies, John A. Evans, and Caleb Evans, on the 
West side of the island, off the Orchard ridge near the N. end of Hog 
neck. I have not been at the stone, but it is now staked ofi" in Ches- 
peake bay, with a flag on the stake, which I could se^ from the gum 
stump I have described, and the flag on that stone as shown to me is 
about a West course from the stump, as near as I can judge without 
a compass. Another stone has been found, which I have seen, at the 
mouth of a little creek, through the marsh called Otter creek, I am 
told, South of " The Barn " point, on the East side of Smiths island; 
and the stone off Orchard ridge, and the gum stump, and the stone 
near Beaver hammock described by other witnesses as near Troy 
island bar, and the stone in the water off Otter creek at the Barn 
point, all, except the stump, being now staked off with flags, range 
nicely East and West, as near as I can judge without a compass. The 
stone off Orchard ridge, I am told, is a very large one, about 6 by 9 
feet, and is the same sort of, I am told, as that near Beaver hammock. 
I paid taxes once in Maryland to Mr. Roach, the sheriff of Summerset 
county, when I lived at Horse Hammock house, and he paid them 
back to me. There was another John Evans, and he meant to collect 
from him. I paid taxes for ray half of the Horse hammock in Vir- 
ginia, and I now live North of Horse hammock on a part of Orchard 
ridge now called Eogues point, which 1 bought about two months ago 
of Henry Dies, and the deed will be recorded in Accomac county, Vir- 
ginia. The Eogues point where I live, purchased from Henry Dies^ 
has been always taxed in Maryland, though it is, I know, recorded in 
Virginia. The stakes and flags have been put at the stones within 
the present week, since these commissioners have been here. You 
can from one stone see two of the flags ; from either end of the line 
you can see the next flag, but not the third, but from the centre you 
can see the flag at either end and tell whether the th) ee are in a 
straight line. 

(Signed) JOHN W. EVANS. 



216 

Deposition of Charles TV. Marsh. 

Mr. Charles W. Marsh was next called, sworn and examined : 

I was 33 years of age last November; I live on Rogues point, 
Smiths island. The first time I ever went to school, when about 9 or 
10 years of age, I swung on the gum tree described by Mr. John W. 
Evans, and was told it was a line tree of the two states, Maryland and 
Virginia, and I can corroborate what has been already said by him 
(Mr Evans) both as to the tree and stones. I can add only that I 
believe the original Hog neck extended as high North as the stone 
found in the Chesapeake by Mr. Dies. The North end of Hog neck 
has washed at least 100 yards in my day, and is now cut through by 
two small creeks. 

(Signed) CHAS. W. MARSH. 



I 



i 



217 



ANSWER OF LORD BALTIMORE 



TO 



QUESTIONS ABOUT MARYLAND. 



No. 96— A. 



Public Record Office — State Papers — Colonial — Maryland. Vol. 43, 
pp. 101-102. March 26th, 1678. 

My Answer to the Enquiries sent unto me by order of the Lords of 
the Committee of Trade and Plantations : 

To the 1, 2, 3. I answer that the said provynce was originally 
granted by his late maj'tie King Charles the First, of glorious memo- 
rye, unto ray ffatlier in fFee, who, by the said grant thereof, was cre- 
ated lord and proprietary of the said provynce, to hold to him, his 
heirs and assigns forever; besydes which, there is a particular clause 
directing the making of lawes by him and his heirs, by and with the 
advise of the ffreemen, or of the deputyes and delegates of the ffree- 
men of the said provynce, for the tyme heinge should think fitt ac- 
cordinge; to which grant, power and discretion all the lawes which 
have hitherto beene made in the said province have been alwayes 
made. And the lord and proprietary of the said provynce, with the 
freemen and the deputyes, and delegates and deputyes of the ffree- 
men, thus assembled for these purposes, make the supreme court of 
this provynce, under the name and title of the generall assembly of 
the said provynce; besides which there were other courts, constituted 
by my said father, and still continued as courts of judicature, namely: 
a provinciall court, beinge next to the assembly of the highest court 
of judicature there, and having cognizance of all causes, as well rela- 
ting to lawe as equity and the admiralty, with power to correct and 
amend the errors of all the inferior courts; alsoe a court of lawe in 
every county, of the name of the county court of each particular 
?8 



218 

county, and one general court for the probate of wylls and granting 
of administrations. 

To the 4th. No answer cann be given in particular here, the records 
being in the said pro vy nee, and necessarily remayneing there; nor 
could he, in case I were there, give any answer which could be satis- 
factory or certayne without returneing the copyes of the said records, 
which would make upp a long and very tedious volume; for the said 
generall assembly meets very often, and the lawes which are made are 
generally temporary and to continue only for three years, to the end 
that experience may inform us whether they will answer the ends for 
which they are intended. And where the necessity and exigencies of 
the provynce doe not enforce them to make any particular lawes, they 
use no other lawe than the lawe of England. 

To the 5th, 6th. I answer as to castles and forts, there are none; 
soe that if an enemy should land there he would not finde any place 
wherein he may fix himselfe. Every county hath its trained bands, 
the number of which are proportionable to the inhabitants of each 
county for the tyme beeinge, and cannot be given by me here with any 
certainty. There is besydes three troops of horse, consisting of about 
180 in all, which have been of late kept on foote for the security of 
the provynce since the late rebellion in Virginia begann. 

To the 7th, I answer that I doe not know of any privateers or pi- 
rates frequenting those waters. 

To the 8th, 9th. I answer, as to the neighbors, they are either Eng- 
lish or Indians. The English neighbours knowe their own strengths, 
of which I can give no acco't. As to the immediate next, Indian 
neighbours, their strength and numbers are not considerable. They 
lyveing under several distinct governments, some having two hundred, 
some three hundred, some five hundred subjects; and there is gene- 
rally a good correspondence kept with them all. The more remote 
Indians are more numerous; but with those this provynce hath little 
correspondence, nor can it by any reasonable conjecture be guessed 
what their strengths are. As to the trade of those Indians with 
whom the provynce corresponds, it is not considerable. They are 
generally an idle people, who take care for anything but foode, which 
they gayne by huntinge and fishinge; and sometimes they sell the 
English the skynns of such beasts as they kill, which is their only 
commodity that they have to sell, and it is not considerable. 

To the 10th, I answer that the boundaryes, longitude and latitude 
of this provynce are well described and sett forth in a late mapp or 



219 

chart of this provynce hitely made and prepared by one Augustine 
Herman, an inhabitant of the said provynce, and printed and pub- 
liquely sold in London by his majestie's licence, to which I humbly 
referr, for greater certaynty, and not to give their lord'ps the trouble 
of a large, tedious description here, but as to the number of acres 
patented and settled or unsettled, it is impossible to give any guess at 
them here, or to have any acc't of them, in case I were there, other- 
wise then by causing a review of all the grants which have passed, 
and which would require a great tyrae and charge, and a greater num- 
ber of persons to be employed therein, then cann be easily procured. 

To the 11th, 12th, I answer that the principal place or towne is 
called St. Marie's, where the generall assemblye and provinciall court 
are kept, and whither all shipps tradeing there doe in the first place 
resort. Butt it cann hardly be called a towne, it beeing in length by 
the water about five miles, and in breadth, upwards, towards the 
land, not above one myle, in all which space, excepting only my owne 
house and buildings, wherein the said courts and publique offices are 
kept, there are not above thirty houses, and those at considerable 
distance from each other; and the buildings (as in all other parts of 
the provynce) very mean and little, and generally after the manner of 
thw meanest farme houses in England. Other places wee have none 
that are called or cann be called townes, the people there not affecting 
to build near each other, but soe as to have their bowses near the 
watters, for conveniencye of trade, and their lands on each syde of 
and behind their houses, by which it happens that in most places there 
are not 50 houses in the space of 30 myles; aad for this reason it is 
they have beene hitherto only able to divide this provynce inty coun- 
tyes, without beeing able to make any subdivisions into parishes or 
precincts, which is a work not to be effected untill it shall please God 
to increase the number of the people, and soe to alter their trade as 
to make it necessary to build more close and to lyve in towns. 

To the 13th, I canuott answer otherwise then by referring to the 
printed mapp before mentioned. 

(This document contains 25 answers in all, and is signed at end) : 

London, the 26th March, 1678. 

CH. BALTEMORE. 

Indorsed : 
26 March, 1678. 

Answer of the Lord Baltemore to the queryes about Maryland. 
Bec'd on ye 1st of Ap., 1678. 



220 

I certify that the foregoing is a true and authentic extract taken 

from the volume above named. 

JOHN McDONAGH, 

Record Agent. 
June 1st, 1871, 



No. 96— A. 
State Papers — Colonial "Entry Book, vol. 52, fol. 1. April 10th, 1676. 

JOURNAL AND ENTRY OF PAPERS CONCERNING MARYLAND AND THE 
GOVERNMENT THEREOF. 

Introduction. 

His ma't'e having been pleased to dissolve and extinguish the late 
councill of trade and foreign plantacons, and to commit what was 
under their inspectioD and management to a comm'ttee of the privy 
councill, appointed for matters relating to trade and foreign planta- 
tions. 

Their lord'ps on ye lOfch of April, 1676, sign a circular letter, w'th 
severall heads of inquiry to ye Lord Baltemore, Lord Proprietary of 
Maryland. 

The letter is as followeth : 



Circular Letter to ye Lord Baltemore. 

After our very hearty commendations to ye lordships, his maj't'e 
having in his wisdom thought fit to supersede the commission by 
which his council of trade and foreign plantations lately acted, aud 
thereby restoring all the business of that nature to its accustomed 
chanel of a committee of his privy council. And his maj't'e having 
more especially committed to a select number of the board, whereof 
we are, the care and management of things relating to his plantations, 
we have therefore thought it convenient to give y'r I'd'p advertis'm't 
thereof, and because we do not as yet find ourselves enabled to give 
his maj't'e such account of the state and condition of that colony as 
his royall service an4 the dependence thereof upon the Crown doea 



221 

require. We have therefore thought fit to send 3'0'r lo'p (as we have 
done to others) some heads of inquiry, here annext, the better to 
guide your lordship in the method of that state and representation of 
things w'ch we expect from your lordship, and doe desire it may be 
done with all convenient speed. 

And so not doubting of your lordship's care to advise us further in 
all matters that may, from time to time, conduce to his maj't'es ser- 
vice, our better discharge of ye trust reposed in us, we bid your lord- 
ship very heartily farewell. 

From the council chamber at Whitehall, this tenth of April, 1676. 

The heads of inquiry are as foil : 



1. What councils, assemblies and courts of judicature are within 
ye province, and of what nature and kind.^ 

2. What courts of judicature relating to ye admiralty.? 

3. Where the legislative and executive powers of the government 
are seated .? 

4. What statutes, laws and ordnances are now made and in force.? 

5. What number of horse on foot in ye province; whether they be 
trained bands or standing forces. How they are armed, divided and 
exercised.? 

6. What castles and forts are within your province, and how situ- 
ated and fortified; as also, what stores and provisions they are 
furnished withall.? 

7. What number of privateesor pirates do frequent ye coast; what 
their burthens are, the number of their men and guns, and the names 
of the commanders.? 

8. What is the strength of your bordering neighbors, whether 
Indians or of any other nation, by sea and land; and what is the state 
and condition of their trade and commerce.? 

9. What correspondency doe you keep with your neighbors.? 

10. What are the boundaries, longitude, latitude and contents of 
land within ye province, what number of acres patented, settled or 
unsettled, and how much is manurable land.? 

11. What are the principal towns and places of trade, and what 
manner of buildings are most used in the colony — as to ye strength 
and largeness of them.? 

12. How many parishes, precincts or divisions are within your lo'ps 
province? 



222 

13. What rivers, harbors and roads are within ye province, and of 
what depths and soundings they are? 

I certify that the foregoing is a true and authentic extract taken 

from the volume above named. 

JOHN McDONAGH, 

Record Agent. 
June 4th, 1871. 



No. 113. 

State Papers— Colonial Entry Book— Vol. 52, No. 86-7. April 2d, 

1681. 

Letter" from his Majesty to the Lord Balti7nore. 

Right trusty and well beloved, we greet you well : Whereas by 
our letters patent, bearing date the fourth day of March last past, 
we have been graciously pleased of our royall bounty and the singu- 
lar regard wee have to the merits and services of Sr Will'm Penn, de- 
ceased, to give a grant to our trusty and well beloved subject William 
Esq'r., son and heir to the said Sr William Penn, a certain tract of 
land in America by the name of Pensilvania, as the same is bounded 
on the East by Delaware river from twelve miles distance Northwards 
of New Castle town on to the three and fortieth degree of Northern 
latitude, if the said river doth extend so far Northwards; and if the 
said river shall not extend so far Northward, then by the said river so 
farr as it doth extend, and from the head of the said river the Eastern 
bounds to be determined by a meridian line to be drawn from the head 
of the said river onto the said three and fortieth degree, the said pro- 
vince to extend Westward five degrees in longitude, to be computed 
from the said Eastern bounds, and to be bounded on the North by the 
beginning of the three and fortieth degree of Northern latitude, and 
on the South by a circle drawn at twelve miles distance from New 
Castle Northwards and Westwards onto the beginning of the fortieth 
degree of Northern latitude, and then by a straight line Westward to 
the limit of longitude above mentioned, as by our said Ires, patents 
doth particularly appear. And to the end that all due encourage-- 



223 

ment be given to ye said William Penn in the setlement of a planta- 
tion w'thin the said country, we do hereby recommend him, his depu- 
ties and officers employed by him, to your friendly aid and assistance, 
willing and requiring you to do him all the offices of good neighbor- 
hood and amicable correspondence which may tend to the mutual bene- 
fitt of our subjects within our provinces onder your respected propri- 
eties ; and more especially we doe think that in order hereonto you 
do appoint with all convenient speed some person or persons who may 
in conjunction with the agent or agents of the said William Penn 
make a true division and separation of the said provinces of Maryland 
andPensilvania, according to the bounds and degrees of Northern lati- 
tude expressed in our said I'res patents by settling and fixing certain 
land marks where they shall appear to border opon each other for ye 
preventing and avoiding all doubts and controversies that may other- 
wise happen concerning the same. And so wee bid you very heartily 
farewell. 

Given at our court, at Whitehall, this second day of Aprill, in the 
33d vear of our reiorn. 



By his ma'ts command. 



CONWAY. 



I certify that the foregoing is a true and authentic copy, taken from 

the volume above named. 

JOHN McDONAGH, 

Record Agent, 
July 14th, 1871. 



No. 114. 



State Papers—Colonial — Maryland — Vol. 43, No. 138. September 

16th, 1681. 

7n. 6w. 
London, 16, 7, 1681. 
Friends : 

I hope I doo not improperly call you soe, because in being 
soe you will exremely befriend yourselves as well as perform an act of 
duty to the king and justice to me. I am equally a stranger to you 



224 

all, but you being represented men of substance and reputation in 
your part of the bay, which I presume falls within my patten t, I 
chose to take this opportunity to begin our acquaintance, and by you 
with the rest of the people on your side of my country, and doe as- 
sure you and them that I will be soe farr from taking any advantage 
to draw great proflSts to myselfe that you shall find me and my gov- 
ernment easy, free and just; and as you shall study be faire and re- 
spectfuU to me and my just interests, I will not be short of giving 
you all reasonable assurance on my part that I shall live kindly and 
well with you; and for this you have my word, under my hand. 

I think fitt to caution you (if within my bounds, as I am ready to 
believe, but I desire noe more than my owne) that none of you pay 
any more taxes or sessments by any order or lawe of Maryland; for if 
you doe it will be greatly to your owne wrong, as well as my preju- 
dice; though I am not conscious to myselfe of such an insufficiency of 
power here with my superiors as not to be able to wether that diffi- 
culty if you should. But the opinion I have of the Lord Baltimore's 
prudence as well as justice, and of the regard to your owne interests 
and future good of your posterity, makes me to waive all objections 
of that nature, and to hope we shall all doe the thing that is just and 
honest (which is allwaies wise) according to our respective stations. 

I have noe more to add but my good wishes for all your happiness, 
and that, by the help of Almighty God, next spring you shall have 
some testimony of my best endeavours to contribute towards it as be- 
comes my duty to Grod, to the king, and to theire people. 

I am, your reall friend, 

WM. PENN. 

For James Hirsetby, Edward Jones, Augustin Harman, George Old- 
field, Henry Ward and Henry Johnson, at theire plantation in 
Pennsylvania. 

Endorsed : 

Copies of a letter from Wm. Pen to Fregby, Jones and others, 
Rec'd inclosed from ye Lord Baltemore, Ap. 24, 1682. 
Caution that they pay not taxes to my Lord Baltemore, 



225 

1 certify that the foregoing is a true and authentic copy taken from 

the volume above named. 

JOHN McDONAGH, 
Record Agent. 
July 14th, 1871. 



Maryland — Sc : 

At a circuit court of the Eighth judicial circuit of the state of 
Maryland, begun and held for Somerset county, at Princess Anne 
town, on the first Tuesday of October, being the third day of the 
same month, in the year of our Lord one thousand eight hundred and 
fifty-four : 

Present — The Hon'ble James A. Stewart, circuit judge, Nathan J. 

Langford, sheriff. 

LEVIN WOOLFORD, Cl'k. 

The following proceedings were had, to-wit : 

Somerset county, to-wit : 

The state of Maryland, 

To the sheriff of Somerset county — Greeting : 

You are hereby commanded to take John Cullen, late of Somerset 
[Place of seal.] county, yeomen, if he be found in your baili- 
wick, and him, in your custody, you safely keep, so that you have his 
body before the county court of Somerset, to be held at Princess Anne 
on the fourth Monday of November instant, to answer unto Severn 
Tyler in a plea of trespass, on the case, &c. Hereof fail not at your 
peril; and have you then and there this writ. 

Witness, the Honorable Asa Spence, chief judge of the Fourth ju- 
dicial district of Maryland, the 19th day of May, Anno Domini, 1851. 
Issued the 15lh day of November, Anno Domini, 1851. 

WM. T. a. POLK, Cl'k. 
J. W. C. 
W. S. W. 

"Cepi," 

JOS. G. POLK, Sheriff. 
29 



226 



Copy Docket Entries from the Trial Docket of October Term, 1854. 

Severn Tyler. — Case nar amended nar pleas, replication. Demurrer 
and joinder filed. 1854, Sept'r 14 — Judgment for plain tifi" on the de- 
murrer. 1854, October 6 — Jury ordered, empannelled and sworn, 
1854, October lOtli — Verdict for plaintiff, and damages assessed at 
$300 00; judgment on verdict nisi. 

John Cullen. 

Lybrand Thomas. — Case nar amended, nar pleas, replication. De- 
murrer and joinder filed. 1854, Sept'r 14 — Judgment for plaintiff on 
the demurrer. 1854, Oct. 13 — Judgment for $1,000 00, damages and 
costs, to be released on the payment of $150 00, with interest from this 
day until paid, and costs. 



Same. 

Thomas Evans. 

James Sterliug, of Jas. 

Emory Riggin. 

Severn Riggin. 

Elijah Somers. 

Southey Sterling. 

John Riggin, of Elisha. 

John B. Stevenson. 

Solomon Pearson. 

William J. Byrd, Esq. 

James T. Daniel. 

Gabriel H. Rowe. 

William G. Hoofman. 

Lazarus Wilson. 

William Evans, of Old Jeans island. 

William G. Hoofman. 

Lazarus Wilson. 

William Evans, of Old Jeans island. 



Southey Miles. 
John Coulboune. 
William G. Hoofman. 
Solomon Bradshaw, 
William I, Hoofman. 



Henry Thomas. 
Solomon Pearson. 
Severn Riggin. 
Elijah Somers. 
Southey Sterling. 
John B. Stevenson. 
Emory Riggin. 
John Riggin. 
James Sterling. 



Maryland, Somerset county, to-wit: 

John Cullen, late of Somerset county, yeoman, was attached to an- 
swer unto Severn Tyler, in a plea, wherefore, with force and artus, 
&c., at the county aforesaid, he seized, took and detained the goods 






227 

and chattels of the said Severn, there then found, being of large value, 
and carried the same away, and converted and disposed thereof to his 
own use, and other wrongs to the said Severn, then and there did 
ao-ainst the peace government and dignity of the state of Maryland, 
and to the great damage of the said Severn, and whereupon the said 
Severn, by William S. Waters and J. W. Crisfield, his attorneys, 
complains that the said John Cullen, heretofore, to-wit, on the first 
day of April, eighteen hundred and fifty-one, at the county aforesaid, 
took and detained the said goods and chattels of the said Severn, to- 
wit, one schooner or vessel, called "Fashion," then and there found, 
and being of large value, to-wit, of the value of one thousand dollars, 
and carried the same away and converted and disposed of the same to 
his own use, and other wrongs to the said Severn, then and there did, 
against the peace, government and dignity of the said state, and to 
the damage of the said Severn, in the sum of one thousand, for which 
he brings suit, &c. And the said Severn further complains that the 
said John Cullen, on the said first day of April, eighteen hundred and 
fifty-one, at the county aforesaid, seized, took and carried away other 
the goods and chattels of him, the said Severn, to-wit, one other 
schooner called " Fashion," then and there found, and being of large 
value, to-wit, of the value of one thousand dollars, and detained the 
same for a long space of time, to-wit, for the space of four months, 
whereby the said vessel or schooner was greatly damaged and lessened 
in valu", to-wit, to the value of five hundred dollars, and the said Se- 
vern was put to great trouble and expense, and was obliged to pay, 
and did pay, large sums of money, amounting in the whole, to a large 
sura of money, to-wit, to the sum of five hundred dollars, to regain 
and recover his said schooner, and other wrongs to the said Severn; 
the said John then and there did, against the peace, government and 
dignity of the said state and to the damage of the said Severn in the 
sum of one thousand dollars, current money, and therefore this suit is 

brought, &c. 

JOHN DOB, 
KICH'D KOE, 

Pledges, &c. 

J. W. CRISFIELD, 
W. S. WATERS, 
WM. DANIEL, 

For Pl'ff. 



228 



Severn Tyler J 

vs. > Nav. Plea, Replication, Demurrer, &c. 

John Cullen. ) 

And the said plaintiff saith that the second and this replication of 
him the said plaintiff, and the matters and things therein contained 
in manner and form as the same are above stated and set forth are 
sufficient in law for him the said plaintiff' to have and maintain his 
aforesaid action thereof against him the said defendant, and the said 
plaintiff is ready to verify and prove the same, as the court here shall 
direct and award. Wherefore, inasmuch as the said defendant hath 
not answered the second and third replications, nor hithirto in any 
manner denied the same; the said plaintiff prays judgment and his 
damages, by reason of the said trespass in the said declaration men- 
tioned to be adjudged to him, &c. 

J. W. CRISFIELD, 

WM. S. WATERS, 
WM. DANIEL, 

Attys for Pl'ff. 

John Cullen at suit, Severn Tyler. 

And the said defendant, by Isaac D. Jones and William Tingle, 
his attorneys, as to the first replication of him, the said plaintiff to 
the second plea of him, the second defendant, and whereof the said 
plaintiff hath prayed that the same may be inquired of by the country 
doth the like, &c. And the said defendant, by his attorneys aforesaid, 
saith that the second and third replications of him the said plaintiff 
to the second and third pleas of said defendant replied. And the 
matter therein contained in manner and form as the same are above 
pleaded and set forth, are not sufficient in law for the said plaintiff to 
have or maintain his aforesaid action thereof, against him, the said 
defendant, and that he, the said defendant, is not bound by the law 
of the land to answer the same, and this he, the said defendant, is 
ready to verify, wherefore, for want of a sufficient replication in this 
behalf, he, the said defendant prays judgment, if the said plaintiff 
ought to have or maintain his aforesaid action thereof against him, &c. 

ISAAC D. JONES, 
WM. TINGLE, 

Attys for defendant. 



229 



Severn Tyler 

vs. ^ Nav. Pleas, &c. 

John Cullt 



yler^ 
len. ) 



And the said Severn, as to the first plea of the said John above 
pleaded, wherein he puts himself upon the country doth the like; and 
the said Severn as to the second plea of the said John above pleaded, 
saith that he ought not, by reason of any thing by the said John in 
in his said second plea above pleaded, to be precluded from having and 
maintaining his action aforesaid against him, the said John, because 
he, the said Severn, protesting that he the said John Cullen at the 
time when &c. was not a justice of the peace, and was not credibly in- 
formed that certain persons — to-wit : John Tyler, William G. Hoff- 
man, Alfred Evans, Elzey Coalbourn, and Thomas Magers, free negro 
boatman belonging to the said boat or vessel called the '' Fashion," 
had been, and then and there were engaged in using a scoop, other- 
wise called a drag, otherwise called a dredge, in taking or catching 
oysters in the water of this state, within the limits of Somerset county 
aforesaid, on board of the said boat or vessel, and had employed and 
were then employing the said boat or vessel, using a scoop, otherwise 
called a drag, otherwise called a dredge, being an instrument prohibited 
by law, such use in taking and catching oysters within the waters of 
this state and within the body and limits of Somerset county afore- 
said, whereby the said boat or vessel, together with her papers, furni- 
ture, tackle, and apparel, and all things on board of her, became and 
were forfeited to the said state in manner and form, as the said John 
hath in his second plea above alleged; for replication, nevertheless, the 
said Severn saith, that after the said John had represented to the 
said justice the said charge in his said second plea mentioned, and be- 
fore the rendition of the said judgment, the said John Tyler, William 
G. Hoffman, Alfred Evans, Elzey Coulbourn, and Thomas Magers, 
free negro, did plead before the said justice that they were not guilty 
of the said charge, so as aforesaid represented to him by the said John 
Cullen, and alleged that they had not been, and were not at the time 
of the said arrest, engaged in using a scoop, otherwise called a drag, 
otherwise called a dredge, in taking oysters in the waters of this state 
and within the limits of Somerset county aforesaid, on board ot the 
said boat or vessel, and were not employing said boat or vessel then 
and there in using a scoop, otherwise called a drag, otherwise called a 
(iredge, in taking or catching oysters in the waters of this state and 



230 

within the limits of Somerset county aforesaid; and the said Severn 
further said that after the rendition of the said judgment of condem- 
nation, mentioned in the said second plea of the said John, and with- 
in ten days thereafter the said John Tyler, one of the boatmen on 
board of the said schooner, executed a bond in the penalty of two 
thousand eight hundred dollars, with two sufficient sureties approved 
by the said John B. Stevenson, justice of the peace, conditioned to 
prosecute his appeal from said judgment with eifect to the nest coun- 
ty court of Somerset county, which should thereafter occur before the 
judge thereof; and afterwards, and within ten days after the rendition 
of the said judgment of condemnation, appealed from the said judg- 
ment to Somerset county court at the term thereof then next after- 
wards ensuing ; and the said Severn farther saith, that afterwards, at 
the term of the said court n.^xt afterwards holden, to-wit, at a county 
court of the fourth judicial district, beginning and held at the court- 
house in and for Somerset county aforesaid, on the nineteenth day of 
May, in the year eighteen hundred and fifty-one, the said John Tyler, 
according to the act of assembly in such cases made and provided, 
prosecuted his said appeal from the said judgment of condemnation 
mentioned in the said John T's second plea, so as aforesaid rendered 
by the said John B. Stevenson, and such proceedings were thereupon 
had in the said court upon the said appeal of him, the said John, as 
aforesaid prosecuted, that afterwards and before the impetration of the 
original writ in this cause, to-wit, one the seventh day of June, eigh- 
teen hundred and fifty-one, by the consideration and judgment of the 
said court, the said judgment of condemnation, so as aforesaid ren- 
dered by the said John B. Stevenson, in the said John Cullen's se- 
cond plea above alleged, was reversed and made void, and of none ef- 
fect, to-wit, at the county aforesaid, as by the said record and pro- 
ceedings thereof still remaining in the said court more fully and at 
large appears, which said judgment, so as aforesaid rendered by Som- 
erset county court in that behalf still remains in full force and effect 
and not in the least reversed or made void. 

And the said Severn, as to the third plea of the said John, above 
alleged, saith that he ought not, by reason of anything by the said 
John in his third plea, above pleaded, to be precluded from having 
and maintaining his action aforesaid against him, the said John, be- 
cause he, the said Severn, protesting that the said John Cullen, at the 
time, when, &c., was not a justice of the peace, and, upon his own 
view, it did not appear to him that sundry persons, to-wit : John 



231 

Tyler, William G. Hoffman, Alfred Evans, Elzey Coalbourn and 
Thaaias Mages, free negro, boatman, belonging to the said boat or 
vessel called the '-'Fashion," were then and there engaged in using a 
Bcoop, otherwise called a drag, otherwise called a dredge, being an in- 
strument prohibited by law from such use in taking or catching oysters 
in the waters of this state, and within the body and limits of Somerset 
county aforesaid, whereby the said boat or vessel, together with her 
papers, tackle and apparel, and all things on board of the same, be- 
came, and were, forfeited to the said state, in manner and form as the 
said John, in his said third plea, hath above alleged; for replication, 
nevertheless, in this behalf, the said Severn saith, that after the said 
John had represented to the said justice the charge in his said third 
plea mentioned, and before the rendition of the said judgment, the 
said John Tyler, William G. Hoffman, Alfred Evans, Elzey Coalbourn, 
and Thomas Magers, free negro, did plead before the said justice that 
they were not guilty of the said charge, so as aforesaid represented to 
him by the said John CuUen, and alleged that they had not been, and 
were not at the time of said arrest engaged in using a scoop, other- 
wise called a drag, otherwise called a dredge, in taking oysters in the 
waters of this state and within the limits of Somerset county afore- 
said on board of the said boat or vessel, and were not employing the 
said boat or vessel then and there in using a scoop, otherwise called 
a drag, otherwise called a dredge, in taking or catching oysters in the 
waters of the state and within the limits of Somerset county aforesaid. 
And the said Severn further saith, that after the rendition of the 
said judgment of condemnation, mentioned in the said third plea of 
the said John, and within ten days thereafter, the said John Tyler, 
one of the boatmon on board of the said schooner, executed a bond 
in the penalty of two thousand eight hundr'^d dollars, with two suffi- 
cient sureties, approved by the said John B. Stevenson, justice of the 
peace, conditioned to prosecute his said appeal from said judgment 
with effect to the next county court of Somerset county which should 
thereafter occur before the judges thereof; and afterwards, and within 
ten days after the rendition of said judgment of condemnation, ap- 
pealed from the said judgment to Somerset county court at the term 
thereof then next afterwards ensuing. And the said Severn further 
says, that afterwards, at the term of the said court next afterwards 
holden, to-wit : at a county court of the Fourth judicial district, be- 
gun and held at the courthouse, in and for Somerset county aforesaid, 
on the nineteenth day of May, in the year eighteen hundred and fifty- 



232 

one, the said John Tyler, according to the act of assembly in such 
case made and provided, prosecuted his said appeal from the said 
judgment ot condemnation, mentioned in the said John's third plea, 
so as aforesaid rendered by the said John B, Stevenson; and such 
proceedings were therefore had in the said court, upon the said appeal 
of him, the said John Tyler, as aforesaid prosecuted; that afterwards 
and before the impetration of the original writ in this cause, to- wit : 
on the seventh day of June, in the year eighteen hundred and fifty- 
one, by the consideration and judgment of the said court, the said 
judgment and condemnation, so as aforesaid rendered by the said Jno. 
B. Stevenson, in the said John CuUen's third plea, above alleged, was 
reversed, and made void and of none effect, to-wit : at the county 
aforesaid, as by the said record and proceedings thereof, still remain- 
ing in the said court, more fully and at large appears, which said 
judgment, so as aforesaid rendered by Somerset county court in that 
behalf, still remains in full force and effect, and not in the least re- 
versed or made void; and this the said Severn is ready to verify : 
wherefore he prays judgment, and his damages by him sustained, by 
reason of the committing of the said trespass, to be adjudged to him, 

&c. 

J. W. CRISFIELD, 

WM. S. WATERS, 

WM. DANIEL, 

Attorneys for the Plaintiff. 



Severn Tyler ") 

vs. > - Trespass, &c., Nar, 

John Cullen. ) 

1. And the said John Cullen, the defendant in this action, by Wil- 
liam Tingle and Isaac D. Jones, his attoneys, comes and defends the 
force and injury, when, &c., and says that he is not guilty of the said 
supposed trespass laid to his charge, or any part thereof, in manner 
and form as the said Severn Tyler hath above thereof complained 
against him; and of this the said John Cullen puts himself upon the 
country, &c. 

2. And the said defendant, for further plea in this behalf, by leave 
of the court, by his said attornej'^s, says : That at the time when the 
Baid supposed trespass in the said declaration are alleged to have been 



233 

committed, to-wit, on the eleventh day of March, in the year eighteen 
hundred and fifty-one, and for a long time previous thereto, and were 
since, the said defendant was a justice of the peace of the state of 
Maryland in and for Somerset co., duly commissioned and qualified, 
to-wit, at the said county, and being such justice, the said defendant 
was credibly informed, to-wit, on the day and year aforesaid, at the 
said county, that certain persons, to-wit: John Tyler, William G. 
Hoffman, Alfred Evans, Elzey Coulbourne and Thomas Magers, free 
negro, boatman, belonging to the said boat or vessel called the "Fash- 
ion," and then and there, were engaged in using a scoop, otherwise 
culled a drag, in taking and catching oysters in the waters of this 
state, within the limits of Somerset county aforesaid, on board of the 
said boat or vessel, and had employed, and were then and there em- 
ploying, the said boat or vessel in using a scoop, otherwise called a 
drag, otherwise called a dredge, being an instrument prohibited by 
law from such use in taking and catching oysters in the waters of this 
state and within the body and limits of Somerset county aforesaid, 
whereby the said boat or vessel, together with her papers, furniture, 
tackle and apparel, and all things on board of the same, became and 
were forfeited to the said state, to-wit, on the day and year aforesaid, 
of the said county; and the said defendant, as justice of the peace as 
aforesaid, by virtue of the power and authority vested in him by law, 
and not otherwise, did upon said credible information afterwards, to- 
wit, on the day and year aforesaid, at the said county, seize and take 
into his possession and detain the said boat or vessel in order to the 
execution of the penalties and prohibitions of the acts of assembly in 
such case made and provided, and did then and there arrest and take 
into his custody all the said boatmen belonging to the said boat or 
vessel, and did then and there carry them before John B. Stevenson, 
who was then and there a justice of the peace of the said state, in 
and for the said county, and did then and there represent to the said 
Stevenson, justice of the peace as aforesaid, the breach of law committed 
as aforesaid; and did then and there name to him, the said Stevenson, 
a justice as aforesaid, the witnesses to support the said charge. And 
the said defendant in fact saith, that the said John B. Stevenson, jus- 
tice of the peace as aforesaid, did afterwards, to-wit, on the day and 
year aforesaid, at the said county, render iudgment that the said boat- 
men were guilty as charged as aforesaid, and did fine each of said 
boatmen the sum of ten dollars, and did also then and there adjudge 
and condemn as forfeited to the said state the said boat or vessel, in 
30 



234 

the possession of the said defendant, as justice aforesaid, together 
with her papers, furniture, tackle and apparel, and all things on board 
of her at the time of her seizure by the said defendant as aforesaid, 
and did then and there pronounce the same to be the property of the 
said state; and so the said defendant in fact saith, that then and there 
he seized and detained the said boat or vessel as a justice of the peace 
as aforesaid, for the cause aforesaid, by reason of her having been for- 
feited to the said state as aforesaid, and not otherwise, and further 
detained the same by reason of the said judgment of condemnation, 
so rendered as aforesaid by the said Stevenson as a justice of the peace 
as aforesaid, and not otherwise. And the said defendant further in 
fact saith, that the seizure and detention of the said boat or vessel by 
the said defendant as aforesaid, and the seizure and detention thereof 
complained of in the said several counts of the said declaration of the 
said plaintiff, are the same seizure and detention, and not others or 
divers, to-wit. on the day and year aforesaid, at the same county; and 
this the said defendant is ready to verify. Wherefore he prays judgment 
if the said plaintiff his action aforesaid thereof to have or maintain, 
ought, &c. 

3. And the said defendant for further plea in this behalf, by leave 
of the court, by his said attorneys, says, that the time when the said 
supposed trespasses in the said declaration are alleged to have been 
committed, to wit, on the eleventh day of March, in the year eighteen 
hundred and fifty-one, and for a long time previous thereto, and ever 
since the said defendant was a justice of the peace of the State of 
Maryland in and for Somerset county, duly commissioned and qualified, 
to wit, at the said county, and being such justice of the peace, upon 
his own view, it appeared to him on the day and year aforesaid, at the 
said county, that sundry persons, to wit, John Tyler, William G. 
Hoffman, Alfred Evans, Elzey Coulbourn and Thomas Magers, free 
negro, boatman, belonging to the said boat or vessel, called the 
'•'Fashion," were then and there engaged in using the scoop, other- 
wise called a drag, in taking and catching oysters in the waters of 
this State, within the limits of Somerset county aforesaid, on board 
of the said boat or vessel, and were employing then and there the said 
boat or vessel in using a scoop, otherwise called a drag, otherwise 
called a dredge, being an instrument prohibited by law from such use 
in taking or catching oysters within the waters of this State and body 
and limits of Somerset county aforesaid, whereby the said boat or 
vessel, together with her papers, furniture, tackle and apparel, and all 



235 

things on board the same, became and were forfeited to the said State, 
to wit, on the day and year aforesaid, at the said county; and the 
said defendant, as justice of the peace as aforesaid, by virtue of the 
power apd authority vested in him by hiw, and not otherwise, did 
afterwards, to wit, on the day and year aforesaid, at the said county, 
seize and take into his possession and detain the said boat or vessel in 
order to the execution of the penalties or prohibitions of the acts of 
assembly in such case made and provided, and did then and ^ere 
arrest and take into his custody all the said boatmen belonging to the 
said boat or vessel, and did then and there carry the said boatmen 
before John B. Stevenson, a justice of the peace of the said State, in 
and for the said county, and did then and there represent to the said 
Stevenson, justice of the peace as aforesaid, the breach of law com- 
mitted as aforesaid, in the view of the said defendant as aforesaid, 
and did then and there name to the said Stevenson, as justice as 
aforesaid, the witnesses to support the said charge. And the said de- 
fendant in fact saitb, that the said John B. Stevenson, justice as 
aforesaid, did afterwards, to wit, on the day and year aforesaid, at the 
said county, render judgment that the said boatmen were guilty of 
the offense charged against them as aforesaid, and did fine each of 
said boatmen the sum of ten dollars, and did, also, then and there, 
judge and condemn as forfeited to the said State the said boat or 
vessel in possession of the said defendant, as justice of the peace as 
aforesaid, together with her papers, furniture, tackle and apparel, and 
all things on board of her at the time of her seizure by the said de- 
fendant as aforesaid, and did then and there pronounce the same to be 
the property of the said State. And so the said defendant in part 
saith, that he seized and detained the said boat or vessel as a justice 
of the peace as aforesaid, for the cause aforesaid, and by reason of the 
said boat or vessel having been forfeited to the said State as aforesaid, 
and not otherwise, to wit, on the day and year aforesaid at the said 
county; and that he further detained the same by reason of the said 
judgment of condemnation, so rendered as aforesaid by the said Ste- 
venson as justice of the peace as aforesaid, and not otherwise; and 
the said defendant in part saith, that the seizure and detention of the 
said boat or vessel by this defendant as aforesaid, and the seizure and 
detention thereof complained of in the said several counts of the said 
declaration of the said plaintiff, are the same seizure and detention, 
and not other or divers, to wit, on the said day and year at the said 



23(5 

county; and this the said defendant is ready to verify. Wherefore 
he prays judgment if the said plaintiff ought to have or maintain his 
aforesaid action thereof against him, &c. 

WM. TINGLE, 
ISAAC D. JONES, 
Attorneys for defendant. 

State of Maryland — Somerset county, set. : 

I, Levin L. Waters, clerk of the Circuit court for Somerset county, 
hereby certify that the within is a true copy of the docket entries and 
proceedings. No. 14, of the trial docket of October term, 1854, of 
the Circuit court for Somerset county. 

In testimony whereof I hereto subscribe my name and affix the 
seal of the said Circuit court, this 30th day of May, 1872. 

[U. S. stamp.] LEVIN L. WATERS, Cl'k. 



Copy Docket Entries from the Appeal Docket of May Term, 1851. 

John Tyler. — Appeal from the judgment of John B. Stevenson, 
Esq. Petition, judgment and bond filed. Issues filed. Plea not 
guilty. 1851, June 5th — Jury impannelled and sworn. Bailiff sworn. 
1851, June 6th — Verdict for the appellant on all the issues. 1851, 
June 7th — Judgement reversed. 

The state of Maryland. 



Appellants' Witnesses 



John B. Stevenson. 
David Tyler, It. 
John Marshall, It. 
Thomas Tyhr, It. 
William Tyler, It. 
W^illiam Evans, It. 
James H. Hoffman, It. 



237 



Peter Evans, It. 
Josiah Tyler. 
Solomon Bradshaw. 
Wm. G. Hoffman, It. 



State's Witnesses 



Benjamin Lankford, It. 
James Lawson, It. 
Sam'l Lawson, It. 
Thomas Dize, It. 
David Tyler. 
John Marshall. 
John W. Johnston, It. 
Ssvern Riggin, It, 
John Riggin, It. 
Severn Tyler. 
Emory Riggin. 
John Riggin, It. 
John Cullen, It. 
John Miles, of Wm. 
Southey Sterling, It. 
Elijah Somers, It. 
John B. Stevenson, It, 

To the Honorable the Judges of Somerset county court : 

The petition and appeal of John Tyler, Somerset county, respect- 
fully showeth that your petitioner conceives himself to be aggrieved 
by a judgment of John B. Stevenson, a justice of the peace of the 
state of Maryland, in and for Somerset county aforesaid, a copy of 
which is herewith filed as a part of this petition and marked exhibit A. 

Your petitioner prays that the said judgment may be examined 
and heard upon the allegations and proofs, and that the same may be 
reversed, and that he may have such other relief as his case demands. 

WM. S. WATERS, 
Att'y for Appellant. 



238 

Exhibit "A," as follows : 



March, 13th day, 1851. 



State of Maryland vs. John Tyler, William Hoffman, Alfred Evans, 
Elzey Coulbourn and Thomas Magers, free negro boatmen, belong- 
ing to the schooner "Fashion," of Snow Hill. 

Parties brought before me by John Cullen, a justice of the peace of 
state of Maryland, in and for Somerset county, charged with having 
violated the laws of this state, by using scoops or drags in taking or 
catching oysters in the waters of the state. Day of trial fixed Thurs- 
day, 13th day of March iust. 

March, 13th day, 1851. 

Judgment on trial that the said John Tyler, William G. Hoffman, 
Alfred Evans, Elzey Coulbourn and Thomas Magers, free negroe, are 
guilty of having violated the law of this state, by taking or catching 
oysters in the waters of this state, with scoops or drags, and each of 
the said parties is fined the sum of ten dollars. And the schooner 
"Fashion," in possession of the said John Cullen, J. P., is hereby 
adjudged and condemned as forfeited, together with her papers, fur- 
niture, tackle and apparel, and all things on board of her at the time 
of her seizure. And the said schooner is hereby pronounced to be 

forfeited. Witness, my hand. 

J. B. STEVENSON, J. P. 

Know all men by these presents, that we, John Tyler, Severn Ty- 
ler, Thomas Miles, are held and firmly bound unto the state of Mary- 
land, in the just and fall sum of two thousand eight hundred dollars, 
current money of Maryland, to be paid to the said state, or its certain 
attorney, to which payment well and truly be made and done, we 
bind ourselves, and each of us, our and each of our heirs, executors 
and administrators, jointly and severally, firmly by these presents. 
Sealed with our seals and date, this twenty-first day of March, in the 
year eighteen hundred and fifty-one. 

Whereas the above bound John Tyler thinks himself aggrieved by 
a judgment of condemnation, rendered against the schooner "Fashion," 
of which he was boatman, on the thirteenth day of March, eighteen 



239 

hundred and fifty-one, by John B. Stevenson, a justice of the peace 
of the state of Maryhahd, in and for Somerset county, in which judg- 
ment, the said schooner " JFashion " was pronounced to be forfeited to 
the said state, from which said judgment the said John Tyler is about 
to appeal to the next county court of Somerset county, before the 
judges thereof. Now the condition of the above obligation is such 
that if the said John Tyler shall prosecute with effect his appeal to 
the next county court of Somerset county, to be held after this date, 
then this obligation to be void, else to be and remain in full force and 
virtue in law. 

JOHN TYLER. [Seal] 
SEVERN TYLER. [Seal.] 
THOMAS MILES. [Seal.] 

Signed, sealed, and delivered 
in the presence of 

SOLOMON BRaDSHAW. 



John Tyler vs. the State of Maryland. 

In Somerset County Court. An Appeal from the Judgment of John 
B. Stevenson, Justice of the Peace. 

State of Maryland, Somerset county, set. : 

The state of Maryland complains and charges that the schooner 
" Fashion " has been unlawfully employed in taking oysters in the 
waters of this state with scoops or drags, contrary to the acts of as- 
sembly in such case made and provided. 

And the said state further complains and charges that the schooner 
"Fashion," in the possession of some person to the said state un- 
known, by said person unknown has been unlawfully employpd in 
taking oysters in the waters of this state with scoops or drags, con- 
trary to the acts of assembly in such case made and provided. 

And the said state further complains and charges that the schooner 
" Fashion," in the possession of some persons to the said state un- 
known, by said persons unknov?n has been unlawfully employed in 
taking oysters in the waters of this state with scoops or drags, con- 
trary to the acts of assembly in such case made and provided. 

And the said state further complains and charges that the schooner 



240 

" Fashion " has been unlawfully employed, to- wit, on divers days, be- 
tween the thirteenth day of March, in the year of our Lord one thou- 
sand eight hundred and fifty, and the thirteenth day of March, in the 
year of our Lord one thousand eight hundred and fifty-one, at the 
county aforesaid, in taking oysters in the waters of this state with 
scoops or drags, contrary to the acts of assembly in such case made 
and provided. 

And the said state further co;n])lains and chaiges that the said 
schooner " Fashion," in the possession of some person or persons to 
the said State unknown, by said person or persons unknown, has been 
unlawfully employed, to-wit, on divers days between the thirteenth 
day of March in the year of our Lord one thousand eight hundred 
and fifty and the thirteenth day of March in the year of our Lord one 
thousand eight hundred and fifty-one, at the county aforesaid, in 
taking oysters in the waters of this state with scoops or drags, con- 
trary to the acts of assembly in such case made and provided. 

WILLIAM J. BYKD, 

Dep. Att'y Gen'l. 

JOHN H. DOVE, 

Attorney for the state. 

State of Maryland — Somerset county, set. : 

I, Levin L. Waters, clerk of the circuit court for Somerset county, 
hereby certify that the aforegoing is truly copied of the docket entries 
and proceedings No. 9, appeals of the May term docket of 1851, of 
Somerset county court. 

In testimony whereof I hereto subscribe my name and affix the seal 
of the circuit court for Somerset county this seventh day of June, in 
the year of our Lord one thousand eight hundred and seventy-two 
(1872). 

LEVIN L. WATERS, Cl'k. 

[U. S. stamp.] 



241 



Wathins Point Boad. 

The followiDg is among the " orders agreed upon by ye com'rs of 
Sommersett countie this 17th of January, 1666-67" : 

Present — William Stevens, Capt. William Thorne, Mr. Jones, Mr. 
John Winder, Mr. Henry Boston, Mr. George Johnson and Mr. 
Stephen Horsi, high sheriffe. 

The highway for ye countie of Sommersett, from ye landing place 
upon Capt. Goyeder's land in Pocomoke river to Morumsco damhs, 
near ye house of Eobert Highnett, and from thence downe to ye head 
of Thomas Prices creek to ye head of William Coleborns creek; and 
from ye head of Will. Coleborns creek to Watkins point from ye 
dambs yl lyeth by Robert Highnett's, to ye lower dambs yt lyeth at ye 
head of Annamessick river; from thence to ye Lower dambs yl lyeth 
at ye head of Back creek of Manokin river; and from thence to ye 
head of Manokin river; and from thence to the head of Wicocomoco 
creek. 

State of Maryland — Somerset County, to-wit : 

I, Levin L. Waters, clerk of the circuit court for Somerset county, 
hereby certify that the foregoing is truly copied from Liber B, one of the 
record books now being and remaining in the office of the clerk of 
the circuit court for said county. 

In testimony whereof I hereto set my hand and seal of said court, 
this twenty-eighth day of October, Anno Domini; eighteen and sev- 
enty-two. 

LEVIN L. WATERS, Cl'k. 

Under the same date and immediately following the order of the 
commissioners laying off the highway for Somerset county, is the erec- 
tion of Somerset county into hundreds, from which the following is 
extracted — 

" The Bounds of Annamessick Hundred." 

"Annamessicke, beginning at Watkins pointe, running to the mouth 
of Morumisco creeke up ye Westernmost side of ye said creeke to 
Morumisco dambs, and from Watkins pointe to the North pointe of 
31 



242 

Annamessecke river, and from thence, running up ye midst of ye neck 
of land called Desert." 



State of Maryland — Somerset county, to- wit : 

I, Levin L. Waters, clerk of the circuit court for Somerset county, 
hereby certify that the foregoing is truly copied from Liber B, one of 
the record books now being and remaining in the office of the clerk of 
the circuit court for said county. 

In testimony whereof, I hereto set my hand and seal of said court, 
this twenty-eighth day of October, Anno Domini eighteen hundred 
and seventy-two. 

LEVIN L. WATERS, Cl'k. 

Endorsement : 

Order laying off publick highway in Somersett countie, and order 
creating Annamessicke Hundred, 17 January, 1666-67. 



Maryland Council Proceedings — Liber H. H., folio 268, 

Commission to Stephen Horsey, Wm. Stephens, Wm. Thorn, James 
Jones, John Winder, Sidney Boston, George Johnson and John Whit- 
tington, to lay out a county, bounded on the South by a line drawn 
from Watkins point, being the North point of yt bay into wcg., the 
river Wighco, (formerly called Wicocomaco, and afterwards Pocomoke, 
and now Wicocomaco again, dotg fall,) to the ocean on the East, 
Nanticke river on the North, and by the sound of Chesp. bay on the 
West, to be erected into a county by the name of Summerset, in 
honor of our dear Sister Lady Mary Summerset. 

22 August, 1666.* 

Note by General Wise. 

Mr. Jones supposes Summerset was organized out of Dorchester. 
See same book. Worcester was carved out of Summerset by act of 
Assembly, 1742. 

*This was before the line was run. 



243 

State Papers— Colonial Maryland — Vol. 43, No. 37. (June 12tb, 

1683.) 

S'r. 

Haveing given you formerly the trouble of many I'res, I blush 
to be still guilty of the same rudeness, and humbly begg you'll please 
to pardon me for these few lines, w'ch addresse themselvi^s to you for 
a favour, w'ch I am assured ye will not be unwilling to grant me. 
That w'ch I presume to beg at your hands is that you'll favour me so 
far, that should Mr, Wm. Penn, (who is suddenly bound for England, 
as he hath lately assured me,) move his Maj'ie for any further order 
and comands in relacon to the bounds of Maryland and Penselvanea, 
that nothing be granted untill I am heard at the council board, and 
that nothing be obtained by Mr. Penn to the prejudise of my interest 
on Delaware river, where Mr. Penn pretends to hold a great part of 
my province by a title (as he saith) from His Highness, the Duke of 
York, In May or June next I will make my personall appearance 
and make my defence, w'ch I begg I may have granted me, for the 
unsettled condition of my affairs here will not allow me to take a 
voyage this shipping. In obtaining this favour for me, you'l infinitely 
oblige. 

Most hon'ble sir. 

Your faithful, humble, and most obediant servant, 

C. BALTEMORE, 
12th June, 1683. 

Endorsed : 

12th June, '83. 

To the Right Hon'ble Lord Baltemore, S'r Lyonell Jenkins, one of 
his Maij'ties principal Secretaries of State, humbly pr'sent att 
White Hall. 

Obt,, 

Mr. penn. 
Maryland, 12 June, 1683. 

Certified to by : 

JOHN McDONAGH, 

Record Agent. 
July 14th, 1871. 



244 

State Papers— Colonial— Maryland— Vol. 43, No. 193. 

Palux, Decemb. 7th, 1683. 
Dear Sir : 

The beginning of the last month I writt to you, and 
therein gave you my acknowledgm't for your obligeing Ire of the 8th 
of 7 per, wherein you very kindly assured me that nothing would be 
concluded by the councill without hearing me or my agent, and that 
if I came over in the spring you believed I should find that businesse 
of Delaware undetermined. I hope (and by your favour I presume 
to assure myself) that I may be heard in person afore the lords of the 
councilU with proceed in a matter of that concerne to my interest; 
and w'ch gives me still the greater confidence I shall have liberty to 
appear in person to make out my right to Delaware is, that my father 
in his lifetyrae, and since his decease I have petitioned his royal high- 
ness for a hearing of that matter, but his highnesse his greater affaires 
did not afford time for it whilst I was in Engl'd, so that since I sought 
for a hearing of that businesse so far as with good — manners became 
me towards his highnesse, it would now be somewhat hard that in my 
absence I should be concluded. S'r, it is a matter of that importance to 
me that I dare not comit the management of it to the best agents I can 
procure to act for me in my — absence; therefore I earnestly recommend 
to your kindnesse that you will continue moveing for some time to be 
given me for my appearing in person at the councill board, where I 
hope to be the latter end of May next, and shall then cleere all things 
soe as may fully satisfie the lords of his majestie's most honorable 
privy councill of my right to Delaware — that part I meane w'ch lyeth 
to the Southward of forty — Northerly latitude. And if my unkind 
neighbor Wm. Penn, or his agents, are able to make out that there were 
Dutch — seated Delaware afore my pattent for Maryland was granted 
(which will be somewhat hard to prove), I will then make it plainly 
appeare that such Dutch were usurpers, and were utterly disowned by 
the states of Hollanders. Of this I have undeniable testimonies, such 
as Mr. Penn will not withstand; and possibly then I shall be able to 
produce something under Penn's hand to the same purpose. S'r, 
I am so well armed and provided with proofs of this kind that I 
onely bagg a personall hearing, and that you will become a soiicitoy 



245 

for me therein, is the favour and kindness I beg at your hands, which 
I will gratefully owne as becomes one that already is. 
Good s'r, 

Y'r faithful! and obliged servant, 

C. BALTEMORE. 

Endorsed : 

7th December, 1683. From my Lord Baltimore, concerning Mr. 
Pen. Rec'd 16 Feb., 1681. 

Addressed : 

For Mr. William Blathwait, at Whitehall. 

Certified to by 

JOHN McDONAGH, 

Record Agent. 
July 14th, 1871. 



iState Papers— Colonial Maryland— Vol. 43, No. 39. 

Dec'r nth, 1683. 
Honered Sr.: 

I know it is to great a boldness I take in giveing you 
the trouble so often, as I doe, with my letters, which I should not 
presume to doe, did not a very great concerne of mine lye afore the 
councill of which you are. It is I about a grant which I am assurd 
my ill neighbor, William Penn, is endeavouring, by his agents in 
England, to gett pog't, the great seale of noe lesse than one-third of 
my province. I meane that part which lyeth to the Eastward of Ches- 
sapeake bay, and is on Delaware river, to the Southward of 40 degree 
Northerly latitude which he pretends was seated by some Dutch afore 
my pattent for Maryland was granted, which neither he nor his agents 
are, as yet, able to prove, and whenever they doe it will signifie title 
to ray prejudice, for I will sufficiently make it evident that if any 
Dutch were there at that time seated, they were but usurpers, and 
bad usurped what they soe seated, being never ownd by the states of 



Holland — nay, I will oblige myselfe to prove such were disowned by 
the states, if I may have liberty and time allowed me till May next, 
to appeare in person, at the councill board there, to defend my right 
which I hope you'l favor me so far as to procure for me, and I shall 
account myselfe highly obliged, and forever remaine Sr., 

Your humble serv't, most faithful serv't, 



C. BALTEMORE. 



11th December, 1683. 



For the Right Hon'ble Sr. LyoQell Jenkinsone, of his majesties 
principall secretaries of state. 

LD. BALTIMORE, 



11th Dec'r. 



Present at Whitehall. 



Letter. 

Maryland, 11th Dec'r, 1683. 



I certify that the foregoing is a true and authenticated copy taken 
from the volume above named. 

JOHN Mcdonough, 

Record Agent. 
July 14th, 1871. 



Colonial— State Papers — Maryland— Vol. 43, No. 191. 

Feb. 12th, 1684. 

A certain tract of land in America havinor been surrendered lonsr 
8itC6 by ye Dutch to ye king and ever since in ye possession of it his royal 
highness. His royal highness having demised it to William Penn, 
!Esq. (lying contigiuous to Pensilvania), at a rent. The Lord Bal- 
temore now disturbs Wm. Penn and his agents there, and opposes ye 
passing of a patent of it to his roy'll highness here. And upon a 
hearing before the lords of ye committee of ye plantations, it beino- 
alledged in the behalf of his royal highness that this tract of land 
was inhabited by Christains before ye Lord Baltemore's patent w'ch 



247 

extended only to land uninhabited by Christians. It was ordered that 
' they should be ready with proofs to that point. 

It is now desired, in the behalf of his royall highness, a day may he 
appointed to be heard to it. 

Endorsed : 

Memo. Concern Pensilvania. Rec'd and read 12 Feb. 8i. 

The business put off till Aprill, when ray Ld. Baltemore will be 

here. 

B. C. 
X. 22. 



I certify that the foregoing is a true and authentic copy, taken from 
the volume above named. 

JOHN McDONOGH, 

Record Agent. 
July 14th, 1871. 



Sr 



State Papers— Colonial— Vol. 43, No. 197. 

Inner Temple, June 30, '84. 



There is a cause depending before the lords committees for ferrein 
plantations between William Penn, lessee, to his r'U highness and ray 
L'd Baltemore, touching a tract of land in the West Indies, the hear- 
ing of which was put off at the desire of my L'd Baltemore till Aprill 
last, at w'ch time they undertook to be ready for hearing; it is the 
duke is principally concerned as being his inheritance and his tenants 
are disturb'd, w'ch obligee me on his r'U h'ss behalt to desire that you 
would represent to the lo's of ye committee the prejudice he may suf- 
fer by any farther delay, and I hope you will y'rself give the speeding 
of this cause all the assistance you can. 

I am your most humble serviant, 

E. HERBERT. 



248 

Endorsed : 

30th June, '84. From 8'r E. Herberbert, concerning W. Pen. Read 
2 May, '80. 

For William Blathwayt, Esq., secretary to the lords B. C. commit- 
tees for forran P. 25. Plantations. 



Certified to by 

JOHN McDONAGH, 

Record Agent. 
July 14th, 1871. 



State Papers— Colonial— Maryhmd— Vol. 43, No. 199. 

March 17th, 1685. 

To answer my Lord Baltemore's letter to me of the 11th July, 
1682, will be sufficient to clear myself of what he hath charged me 
"w'th untill that day, it being a repetition of ye jornall he kept, but 
cannot begin my answer w'th ye begining of his letter, he having 
began with ye end of the story. 

The lett'r I sent ray lord from the head of the bay, bore date ye 
25th of 7'ber, '81, occasioned by my long passage up thither, haveing 
spent most of the time I intended for ray jorny to New York, or to 
have sent thither to borrow Coll. Morresses instruraent, by w'ch I de- 
sired tenn days longer after I gott home, — being very ill, sent a 
second letter to my lord, w'ch he mentions ye receipt off; but before 
it came to his hand, I had one from him of ye lOtli 8'ber, '81, (w'ch 
he cunningly would evade mentioning,) wherein he tells me he could 
not come up that year for fear of ye frost, but would wholely lay the 
not meeting that — year to me. To mine of the 17th March, 8i, I 
might reasonably expected an answer before ye 22nd of May, w'ch 
was the day I rec'd his of the 14th, ibid., in w'ch he tells me he had 
ended his sessions of assembly, and settling his business, in ord. to 
meet me ye beginning of ye next month without regard to any affaires 
of mine, ye w'ch at ye time was very urgent, for having engaged to 
pay ye Indians foi the land I had bought of them before ye middle of 
June, in ~ expectation of w'ch they deferred their hunting till it — 



1 



249 

was almost too late for that year, and if they had goii before 1 had payd 
them wee could not have had any land that yeare to seat the people on 
y'r daily came there, it being our custome not to use any land un- 
bought of y'r natives, a thing ray Lord Balteraores — a stranger to, 
haveing taken all his by force, never purchased any of ye poor natives, 
nor did he ever mention his haveing an instrument, as I desired by 
mine, altho' he knew I had none, but that had sent to New York to 
borrow one, w'ch was not yett come, nor had it, had not I gon myself 
and ingaged for its security, on ye 26th of May, seeing a necessity for 
my goeing to New York as aforesaid sent an expresse to my Lord 
Baltemore, supposeing it might be with him before his setting out, 
with orders at home, that if they heard of my lord's coming, to send 
an express to me to New York. My lord here takes notice of the re- 
ceipt of mine of ye 26th May, and yt in it I mention ye 10th June, 
but not ye occasion, which was to desire it might be putt off till I 
came from New York, but his lordshipp's way of showing his pollitick; 
and now, sr., I begg leave yt I might not follow his lordshipp's — 
immathodicall method to leave his letter of ye 11th of July a while 
and come to some others of his and agents, that I might ye more 
easily keep the path I began in — here ought to be read his letter of 
the 1st June, '82, by w'ch he excuses his not coming himselfe, as he 
had promised, but yt he had sent his com'rs, and hoped they would 
meet w'th persons the like quallified, this very letter was brought by 
ye com'rs themselves, and ye first time I ever heard he had an interest 
to send com'rs, and therefore no wonder they were disappoint'd of 
meeting any of the like qualifi'd. W'th this letter I received one 
from his com'rs dat — from Augustine Harman ye 10th June, '82. 
They were both brought me to New York by George Goforth. In 
this letter they desired — I would dispatch persons with instruments to 
joyne with them. In order to this I shipp off an instrument at New 
York, on board of Creger's sloop, and took my jorney by land to meet 
them. When the sloop arrived at New Castle, my Lord Ba's com'rs 
were there, and understanding the instrument I had borrowed was on 
board, did, by ye means of the Dutch inhabitant of that towne, pro- 
cure the master, (he being a Dutch man,) to bring it on shore, and 
there they used it, as you may see by my lord's letter of 11th July, 
(a confidence I never mett the like, to dare to touch an instrument 
that was to be used by the contrary party, and so privately, that no 
friend of ours was by.) Now how honest this will appear before all 
sober men, as his lordshipp is pleased to say of my actions, I know 
32 



250 

not, but in my opinion they that don't take it for knavery will be 
mistaken. I beg pardon for this degression. The day after they had 
used the instrument, I came down to Newcastle, believing the com'rs 
had been there, but they were gone the night before. 

The next morning I sent Mr. Haig to Augustine and Harmans, in 
hopes to a found them there; but they were gone before became there, 
but on the same day. What reason these gent'men had to goe back, 
when they saw the instrument and was told I was near home, I can't 
imagine. July 7th, '82, I sent to my lord to give him a No. 1 y't. I 
made all possible speed to meet his com'rs. How strangely I mist 
them, and how ready I was now to joyne with them now had secured pay 
for ye Indians. By a lett. from my lord of ye 14th August, '82, he 
tells me ye sometime ye next month he intended to send his com'rs of 
againe, and perhaps come himselfe, the w'ch accordingly he did, A 
particular journal of it I have writt by itselfe. 

William Markham, gent., maketh oath that this is a true answer 
to all the allegacons (yet known) alledged by the Lord Baltemore. 

WM. MARKHAM. 

Endorsed : 

An answer to ye Lord Baltimore. Sworn before the committee, 
March 17th, 168|. 

Certified to by 

JOHN McDONAGH, 

Record Agent. 
July 15th, 1871. 



State Papers— Colonial— Vol. 43, No. 201. March 17th, 1685. 

My Lord : 

Yesterday I putt my instrument on board my boat and 
provided otherwise to attend yo'r lordship at New Castle in order to 
lay out the linne betwixt the two provinces towards Chesapeak bay, 
but as the tyde served and my boat ready to saile, I received advice 
from Chechister, ati Markes Hook, of yo'r lordshipp's carriage in that 



251 

— towne, w'ch I no sooner received but reflecting on yo'r lordshipp's 
last at parting from Upland, I saw it — absolutely needful for me to 
consult with ye persons in this province most concerned for the safety 
of it; and, my lord, they are of opinion that your lordship hath left 
his province in y't disorder that it is absolutely necessary for me att 
this time to stay in it as well to quiet the mind of the inhabitants as 
also to prevent any such thing for the future. Thus, my lord, yo'r 
lordship has prevented my attendance, &c. 

This is a true copy sent to the Lord Baltemore (the conclusion or 
complement excepted), to — w'ch William Marl?;ham maketh oath. 

WM. MARKHAM. 

Endorsed : 

Mr. Markham's attestation of a letter sent to my L'd Boltemore. 
Sworne before the committee, March 17th, 1681. 

Certified to by 

JOHN McDONAGH, 

Record Agent. 
July 15th, 1871. 



State Papers— Colonial— Vol. 43, No. 204. 

March 17th, 1685. 
To his ExceH'y, my Lord Baltemore : 

Whereas yo'r lordship hath been pleased to desire a reason of me, 
under my hand, why I concur not with yo'r lordship in laying out the 
bounds of this province, Penns'vania, upon Delaware river. My lord, 
this is my reason : that as I received all y'r part of the river Dela- 
ware beginning 12 miles above New Castle towne and soe upwards 
from the government of New York, w'ch is according to the express 
words of his — maj'ts lett'rs pattents to our proprietory Wm. Penn, 
Esq're, I most humbly conceive that I am not to be — accoumptable 
to any other person then his maj'ty or royal highness for any part of 



252 

this province — laying upon Delaware river and soe bounded, but if 
yo'r lordship be willing to lay out ye bounds betwext this province, 
and yo'r lordshipps laying towards Chesapeake bay and the river on 
that side, I am ready and willing to wayte upon yo'r lordship for y'r 
end and purpose. 

I am, my lord, yo'r lordship's most humble servant, 

WM. MARKHAM. 

Upland, in Pennsylvania, 7 ber 25, 1682. 

Wra. Markham raaketh oath that the above mencioned is a true 
copy, delivered by me to ye Lord Baltemore. 

WM. MARKHAM. 

Endorsed : 

Pensilvania. Mr. Markham's reason for not laying out the bounds 
of Pensilvania with ye Lord Baltemore, sworne before the committee 
March 17, I85. Wm. Markham's reason given Lord Baltemore 
why he lays not out ye bounds of the province. 

Certified to by 

JOHN McDONAGH, 

Record Agent. 
July 15th, 1871. 



State Papers— Colonial Entry Book— Vol. 52, p. 107-114. 

Order and Report upon ye — Difference between the Lord Baltemore 

and Mr. Penn. 

At the Court at Whitehall, 
13th Novemb, 1685. 

The king's most escell't maj'is, in councill : 

The following report from the right hon'ble the lords of the com- 
mittee for trade and foreign plantations being this day read at the 
board. 



253 

Mem'd— The lords of the committee for trade and plantations having, 
pursuant to his late uia'js order in councell of the 31st of May, 1683, ex- 
amined the matters indifference between the Lord Baltemoreand Wil- 
liam Penn, Esq., in behalf of his present majesty concerning a tract 
of land in America commonly called Delaware, their Tps find that the 
land intended to be granted by the Lord Baltemore's patent, was only 
land uncultivated and inhabited by savages, and that this tract of 
land now in dispute was inhabited and planted by Christians at and 
before the date of Lord Baltemore's patent, as it hath been ever since 
to this time, and continued as a distinct colony from that of Mary- 
land, so that their lo'pps humbly offer their opinion that for avoyding 
further differences the tract of land lying between the river and bay of 
Delaware and the Eastern sea on the one side, and the Chesapeake 
bay on the other, be divided into two equall parts by a line from the 
latitude of Cape Henlopen to the 40th degree of Northern latitude, 
and that one half thereof lying towards the bay of Delaware and the 
eastern sea be adjudged to belong to his ma'jy, and that the other half 
remain to the Lord Baltimore as comprised within his charter. 

Council Chamber, 7th Nov'r, 1685. 

His ma'jy well approving of the said report, it was thereupon or- 
dered by his maj'ty in councell that the said land be forthwith divi- 
ded accordingly, whereof the said Lord Baltemore and William Penn, 
together with their respective officers, and all others whom it may 
concern, are to take notice and give due and ready obedience — there- 
unto. 



Report touchiny the Prosecution of the Quo — Warrantoes in the 

Plantations. 

Memd. — My lord president is desired by the right hon'ble, the lords 
of the cora'tee for trade and jjlantationSj to move his maj'y that di- 
rections may be given to Mr. Attorney — Gen'll that the prosecution 
of severall writts of quo warranto against the proprietys of the pro- 
vince of Maryland, and against the colonies of Conecticut and Khode 
Island, and the proprieties of East and West New Jersy, and of Dela- 
ware, in America, may be renewed, and that the — same may be prose- 
cuted to effect. 

Councill Chamber, 21st April, 1686. 



254 



Mr. Attorney to Prosecute my Lord Baltemorc and other Proprietors 

in America. 

At the court at Whitehall, the 30th of April, 1687: 

Present — The king's most excellent maj'y in councill. 

Whereas, on the 10th and 17th of July last past it was ordered 
that Mr. Attorney should proceed by quo warranto against the char- 
ter granted to the Lord Baltemore's ancestors of the propriety of Mary- 
land, as also ag't the gov'rs and comp'ies of the colonyes of Connec- 
ticut, Rhode Island and Providence Plantation, and against the pro- 
prietors and East and West Jersey and of Delaware, and all in America, 
his maj'y in councill this day thought fitt to order, and it is hereby 
ordered, that S'r Rob't Sawyer, kn't, his raaj'ies attorney generall, do 
forthwith put the said order in execution by causing the proprietors 
of the aforesaid places to be prosecuted on the said writt according to 
law, in order to their vacating of their several charters or grants. 

Memon'd for my Lord President : That his maj'y be moved for the 
signification of his pleasure concerning the writts of quo warranto 
issued against the severall — proprietors and corporations in America. 

Councill Chamber, 18th May, 1687. 



Order of Councill to Mr. Attorney and Mr. — Solicitor to — Prose- 
cute the Quo Warrantoes issued against the several Proprietors 
and Corporacons in America. 

hi the court of Hampton court, the 28th of May, 1687: 

Upon reading a report from the right hon'ble, the lords of the 
com'tee for trade and plantations, it is this day ordered by his maj'y 
in councill, that Mr. Attorney and Mr. Solicitor Gen'll do forthwith 
proceed upon and prosecute the quo warr'tss which have been issued 
or ordered to be issued out against the severall proprietors and corpo- 
racons in America. 

Mem'dum.— On the 20th of Feb'y, 168|, the Lord Baltemore, at- 
tending in pursuance of orders from their lord'ps, is told by the 



255 

com'tee that it is expected from his lor'p that he should cause King 
William and Queen Mary to be proclaimed in Maryland; whereupon 
my Lord Baltemore promiseth to obey any orders he shall receive from 
the board. 

And on the 26th the following letter from the councill, enclosing 
the form of a proclamation for proclaiming the king and queen in 
Maryland, together with a copy of the oath appointed by act of par- 
liament to be taken instead of the oaths of allegiance and supremacy, 
are delivered to his lord'p. 



Letter from the Councill for Procla. the King and Queen in 

Maryland 

After our very hearty commendations — 

Whereas William and Mary, prince and princess of Orange, have, 
with the consent and at the desire of the lords spiritual and temporal 
and commons assembled at Westminster, been proclaimed king and 
queen of England, France and Ireland, and of the territories and 
dominions thereunto appertaining, we have thought fitt hereby to sig- 
nify the same unto your lo'p, with directions that with the assistance 
of the councill and inhabitants of Maryland you proclaim their most 
sacred ma' ties, according to the forme here — enclosed, with the so- 
lemnities and ceremonies requesit on the like occasion, as also that 
your lord'p do give directions that the oathes herewith sent you be 
taken by all persons of whom the oathes of allegiance and supremacy, 
or either of them, might heretofore have been required; and that the 
said oathes of allegiance and supremacy be sett aside and — abrogated 
within your propriety. 

And so wee bid your lo'p very heartily farewell. From the councill 
chamber at Whitehall, the 19th day of February, 1681. 
Your lor'ps very lor. friends. 



A Procla77iation for the Province of Maryland. 

Whereas William and Mary, prince and princess of Orange, have, 
with the consent and at the desire of the Lord's spiritual and tempo- 



256 

rail and commons assembled, at — Westminster, been proclaimed king 
and queen of England, France and Ireland, and of the dominions and 
territorit^s thereunto belonging. Wee, therefore, ye proprietor and 
councill together with the principal officers and inhabitants of this 
colony and plantation of Maryland, do hereby with one full voice and 
consent of tongue and heart, publish — and proclaim William and 
Mary prince and princess of Orange to be king and queen of England, 
France and — Ireland, di'fendeis of the failh and supreme lord and 
ladv of their maj'is province of Maryland, and of all other the terri- 
tories and dominions to the crown of England, belonging, to whom, 
wee do acknowledge all faith and true allegiance with all hearty and 
humble affection, — beseeching God by whom king's reign to bless 
King William and Queen Mary with long and happy years to reign 
over us. God save King William and Queen Mary. 



State Papers — Colonial Entry Book — Vol. 52, p. 117. 

Report concer. Maryland vid. the Report and Order leh. Plan in 
Gen. Vol. 2, page 44. 

The 26 of April, 1689. 

Memorand. — There lord'ps taking into consideration the present 
state of the plantations with relation to the war with France among 
other things to be represented to his ma'ty agree to move his ma'ty 
that as Maryland, Pensilvania and Carolina are proprieties of great 
extent in America, — which do not hold themselves subject to his 
immediate — government, nor render any acc't to his ma'ty of their 
proceedings his ma'ty would please in this conjuncture to give such 
directions as may better secure their ma'ty's interest in those parts 
and putt them into a condition of defence against the enemy. Upon 
which representation his ma'ty in councill, the 2nd of April, 1689, 
was pleased to order their laps to propose to his ma'ty what may be 
fit to be done for securing their ma'tie's interest in the severall pro- 
prieties in America. 

Whereupon their lop's, by their report of the 16th of May, 1689, 
among other — things represented to his ma'ty as — follows : 



257 

Report Concerning Maryland. 

May it please Your Ma'ty : 

We have further considered the present condition of Maryland, 
Pensilvania and Carolina, as they are — provinces of great extent 
and importance to the crown. But as they have been formerly granted 
by your ma'ts predecessors to severall persons in absolute propriety 
by — which title they claim a right of governm't. Wee humbly 
conceive their present circumstances and relacon the stand to the gov- 
ernm't of England to be a matter worthy the consideration of the 
parliament for the bringing of those proprietys and dominions under 
a nearer dependance on ye crown. 

All wh'ch is humbly submitted. 

On the 25th of May, 1689, their lops agree further to move his 
ma'ty as follows : 

Bc2)ort concerning Maryland. 

Memor'd'm. — The right hon'ble, the lords of the com' tee for trade 
and plantations, desire my lord president humbly to propose to his 
ma'ty that his pleasure be signified to some of his ma'es privy councell, 
who are members of the house of commons, that they move the house 
to take into their consideration the present state and government of 
Maryland under the Lord Baltemore, and the relation that province 
stands unto the government of England, in order to bring the same 
under such a dependance on the crown as is necessary in the present 
conjuncture. 

Certified to by 

JOHN McDONAGH, 

Kecord Agent. 
July 15th, 1871. 



State Papers — Colonial — Entry Book — Vol. 52, p. 146. Jan'y 7th, 

1690. 

Mem'd'm. — To the lords of the comm'tee for trade and plantations 

desire my lord president to lay before his ma'ty, that they have read 
33 



258 

several letters presented to them by the Lord Baltemore, proprietor of 
Maryland, the copies of two addresses, and other papers, with a de- 
claration in print from the inhabitants there, whereby it appears that 
the inhabitants having not received any orders from the Lord Balte- 
more, have of their own accord, proclaimed their maj's, and remaine 
in armes in opposition to the Lord Baltemore's government. Where- 
upon their lops are consulting Mr. Attorney-Generall touching the 
power granted by charter to the — Lord Baltemore, in order to such a 
settlement of that province as may be most for his majesty's service, 
and are of opinion that in case the same cannot be done before the 
departure of the ships for Virginia, a letter from his maj'te may be 
sent to those in the present administration of the governm't in Mary- 
land, approving of their having — proclaimed their ma'ties, and or- 
dering them to preserve the peace, and to take care that no spoile or 
violence be — committed, and that things remain in the condition 
they shall be in at that time, untill his ma't's further — pleasure 
shall be known. 



Order for a Letter to the OovernrrCnt of Maryland. 

Councill Chamber, the 7th of January, 168k)- At the court at 
Whitehall, the 30th of Jan'y, 1689 : 

Present — The king's most excell't ma'ty in councill. 

The rt. hon'ble the lords of ye committee for trade and plantations 
having this day presented to the board the draught of a letter from 
his maj'y to be sent to Maryland. His ma'ty in councill is pleased to 
order that one of his ma'tys principall secretaries of State do prepare 
a letter for his maj'tys signature, according to the said draught, to be 
sent to Maryland by the first opportunity. 



William R. 



Whereas by your declaration and by the copies of two — addresses 
laid before us, the one entituled an humble address of our loyall Pro- 
testant subjects, inhabitants of our — provence of Maryland. The 
other being the address of the representatives of our said Protestant 



259 

subjecks, the originalls whereof, as we are informed, have beeu inter- 
cepted by the French. We are given to understand the reasons and 
motives for your appearing in armies upon notice of our accession to 
the crown with your readiness in proclaiming us and the queen within 
that province. And being also assured by you that you will secure 
the government — thereof in such manner as you can for our service 
untiil our royall pleasure shall be known therein. We have — thought 
fitt hereby to signify our royall approbation of your having proclaimed 
us and the queen. And we do further authorize and impower you to 
continue in our name — your care in the administration of the gov- 
ernment and preservation of the peace and properties of our subjecks 
— according to the laws useage of that our province, — untiil upon 
a full examination of all matters and — hearing of what shall be rep- 
resented to us on the behalf of the proprietor and his right. Wee 
shall have taken — such finall resolution and given such directions 
for a lasting settlement as shall most conduce to our service and to 
the security and satisfaction of our subjects within that province, and 
in the meantime we are pleased to direct you to suffer the proprietor 
or his agents to collect the revenues arising there, and that such part 
only of the said revenue be applyed by you for the support of the — 
government, as hath usually been allowed and applied by the said, 
proprietor to that purpose. And we do further strictly charge and 
require you to take especiall care that the several acts of trade and 
navigation be duly observed and put in execution within our said 
province. And so we bid you farewell. 

Given at our court, at Whitehall, the first day of February, 1689, 
in the first year of our reign. 

By his ma'ts comand. 

SHREWSBUEY. 

To such, as for the time being, take care for preserving ye, ye peace 
and administering the laws in our province of Maryland in America, 

Certified to by 

JOHN McDONAGH, 

Record Agent, 
July 15th, 1871. 



26G 



State Papers— Colonial Entry Book, Vol. 52, p. 173-8— Sept. 1, 1690. 

To the Right Hon'ble, the Lords of the Committee for Trade and 
Plantations : 

The petition of Charles Lord Baltimore humbly sheweth that your 
petitioner was ordered to attend your lordsh's on Tuesday the 7th in- 
stant, w'ch he did, and bro't with him severell persons, inhabitants and 
traders of the province of Maryland, who have had long knowledge of 
your pet'r's manner of government there; that your pet'r was then or- 
dered by your I'hs to attend his maj'tie, in councill, upon the Thurs- 
day follo'g; w'ch, accordingly, your pet'r did with the persons afore- 
said, but was told by Mr. Blathe'ayt; was again referred to your 
lord'h's, whose order your pet'r hath received to attend this day. 

Your petitioner humbly prayes your lord'h's yf you will be pleased 
to grant him a hearing before your lordsh's concerning y'r present dis- 
turbances and troubles in the said province of Maryland, in order to 
the quiet resetting the same in ye hands of your pet'r's deputies and 
offices, that law and justice (by these troubles obstructed) may again 
have their due course to ye gen'll good of his ma'tie's subjects there, 
and that your lordsh's will be pleased to admitt the inhabitants and 
traders aforesaid to speak their knowledge in anything relating to the 
affairs of ye said province. 

And your pet'rs shall ever pray, &c. 



Humble Proposals of Charles Lord Baltimore to the R't Hon'ble, 
the Lords of the Committee for Trade and Plantations. 

That those persons that are in commission for dep'tyrs, councill and 
justices of the province (^f Maryland shall be removed for the satisfac- 
tion of his maj'y. 

That a commission shall be forthwith sent to one Mr. Henry Oour- 
sey, to be deputy governor, a person of good repute and credit, and 
well esteemed by all ye inhabitants of Maryland, he being of the 
church of England, and a very ancient liver and inhabitant there, as 
most of the considerable dealers and traders to that province can tes- 
tify. 



261 

That such other persons y't are profest Protestants, and men of 
good repute, credit and estate, (as several of the traders and dealers of 
Maryland can also testifie,) shall be nominated and iinpowered to be 
the councill there, to whom his lords'p prayes the king's commands 
and directions, for the full examination of the truth of all such mat- 
ters pretended by John Coode and those other persons — joyned with 
him to be the cause of their taking up — arms and possessing them- 
selves of the government thero. 

That his lords'p does not desire (if his maj'tie forbid) ye prosecution 
or any way molesting the said Coode and his adherents for any act or 
thing done by them — against ye government, his lords'p being will- 
ing to give good security and to remain as a pledge here that his ma- 
jestye's commands and orders herein shall bj most fcxithfully and 
punctually obeyed. 

That his lords'p is fully assured — will give all the satisfaction the 
inhabitants in gene'l can desin^. and which his lords'p is likewise cer- 
tain all the merch'ts, traders and dealers from that province will be 
very much satisfied with. 



From ye L'd Chief Justice Holt (Bundle E. N., 9.) 

My Lord : 

I think it had been better if an inquisition had been taken 
and the forfeetures committed by ye Lord Baltimore had been therein 
founde before any grant be made to a new governor. Yet, since there 
is none, and it being in a case of necessity, I think the king may, by 
his commission, constitute a governor whose authority will be legall; 
and tho' he might be responsible to the Lord Baltimore ior the peo- 
ple, if an agreement can be made with the Lord Baltimore, and will 
be convenient and easy for the governor, y't the king shall appoint an 
inquisition, may at any time be taken, if the forfeeture be not par- 
doned, of which there is some — doubt. 
I am, my lord, your lordship's 

Most humble and obedient servant, 

JOHN HOLT. 

Sekgeant's Innb, June 3d, 1690. 



262 



The Attorney Gen'll Report upon the Draft of a Commission for the 
Govern of Maryland. 

At the Council Chamber at Whitehall, the 22Qd day of August, 
1690 : 

The Rt Hon'ble the lords of the committee for trade and foreign 
plantacons are pleased to referr the draught of a commission to Lionel 
Copley, Esq'r, for the government of Maryland, hereunto annexed to 
Sir George Treby, kn't, their ma'ties attorney generall, who is desired 
to consider the same, and to report his opinion to the committee — 
whether the said draught may be fitt to pass the great scale accord- 
enly. 

WILLIAM BLATHWAYT. 

Mem'dum. — The draught referred to the attorney gen'll was accord- 
ing to ye commission usually to ye gov'ts on ye other their majesties 
plantations. 



May it please your lo'pps : 

In obedience to your lo'pps order of reference I have perused the 
draught of the commission therein menconed, and I am of opinion as 
foUoweth : I understand the seizure of this government to be for ne- 
cessity, as being the only — means of preserving the province. The 
nature of the — seizure is only to take the government out of the hands 
that neglected and endangered it into the king's hands. But the lawes 
and custoraes and the propertyes of the inhabitants are to be pre- 
served as farr as may be. I doe not know whither or how farr the 
particulars in this draught are agreeable to the laws and manner of 
government which have been seated there, or may be prejudiciall to 
the interest of the inhabitants. 

I did draw a commission general reciting y'd confusion that was 
there, and the danger of loosing the province to the enemyes, and the 
necessity of takeing it into their majesties hands and thereupon con- 
stituting a governor there to governe according to the laws of the 
place (and as the administracion ought to have been by the former — 
governor), and to defend the provence and take and apply the public 
revenue to y't purpose. And I see noe — cause to depart therefronj 



or to recommend this present draft hereunto annexed, not knowing 
that the particulars therein conteyned are agreeable to the settled or- 
ders of governm't there or absolutely necessary for the preservation of 
the province. 

Mem'dum. — The draught of a short commission mentioned by Mr. 
attorney gen'U was returned to him again by Capt. Copley. 

All vv'ch is humbly submitted to your lo'pps great wisdomes. 

GEO. TREBRY. 
Sep't 1st, 1690. 

Certified to by 

JOHN McDONAGH, 

Record Agent, 
July 15th, 1871. 



264 



GOV. TAZEWELL'S MANUSCRIPT. 



The following 2)ages are a correct copy of a manuscript said to be 
in the handwriting of Gov. Tazewell, relating to the question of boun- 
dary between Virginia and Maryland, and can be read to advantage in 
connection with the opinion of Reverdy Johnson upon the riparian 
rights of Virginia proprietors on the Potomac river. 

C. E. SNODGRASS. 



The territory claimed by the State of Maryland is held by the State 
of Virginia, and is included within the meridianal lines. The East- 
ernmost of these lines passes over a stone, well known as the Fairfax 
stone, which was planted on the 17th day of October, 1745, at a spot 
"in the Alleghany mountains, where that part of the Potomac river, 
which is now (then) called Cohongoroota, first rises. This stone was 
intended to mark, and forever designate, ' the first head' spring of the 
river Potomac." The westernmost of these meridians passes over 
some spot that may 'hereafter be pointed out as the most western 
source of any branch of the Wappacomo, now known as the South 
branch of the said river Potomac. Both these meridianal lines ter- 
minate Northwardly at the parallel of latitude long known as Mason 
and Dixon's line, which is conceded to be the Southern boundary of 
the State of Pennsylvania. The space included between this parallel 
of latitude, the two meridianal lines described above, and the Wappa- 
como, or South branch of the river Potomac, and any of its branches 
that may extend farthest towards the West, is that to which the State 
of Maryland now asserts a title. 

This space comprehends large portions of the counties of Hamp- 
shire, Hardy, Pendleton, Randolph and Preston, in Virginia. All of 
it is held by individuals under ancient grants issued by the govern- 



265 

ment of Virginia; and the inhabitants of this region have been repre- 
sented in the general assembly of Virginia as members of this com- 
munity ever since the year 1738, certainly, and how long before we 
know not. 

In examining this claim advanced by the State of Maryland, it is 
not necessary to refer to the sources from which the State of Virginia 
derives her title to the territory in question, which she has so long 
held, and still holds, as her own domain. It would be easy to do this: 
but the claim advanced by the State of Maryland concedes, that not 
only this particular territory, but that every portion of what is now 
held by that State as her domain, was originally part and parcel of 
the more ancient colony of Virginia, and was carved out of this by 
the letters patent granted by King Charles the First to Cecilius Cal- 
vert, Baron of Baltimore, on the 20th of June, 1632. 

Indeed, one of the principal foundations on which this claim is 
rested by the State of Maryland, is the solemn act of Virginia, con- 
tained in her former constitution, whereby she released to Maryland 
the territory included within the limits of this charter. 

Claiming thus under Virginia, Maryland not only admits, but as- 
serts the original right of Virginia to the particular territory in ques- 
tion, and so supersedes the necessity for the exhibition of any title by 
Virginia to maintain her rights. 

Moreover, as the claim advanced by the state of Maryland is con- 
fined to the territory said by her to be comprehended within the limits 
of this grant made to Lord Baltimore, if the tract in question is not 
included within these limits it is conceded by Maryland that she has 
no right to it. 

Therefore, so far at least as the interests of Maryland are involved, 
it is of no consequence whether the region now held by Virginia be- 
longs to her of right or not; for even if it does not belong to Virginia, 
it does not belong to Maryland, according to her own shewing. 

Then, the only question presented by the claim advanced on the 
part of the state of Maryland is this, is the tract of country described 
above included within the limits of the charter granted by King Charles 
the First to Lord Baltimore in 1632 ? 

The mere presentation of such a question by the state of Maryland 
at this time cannot fail to attract attention to the singular position it 
shews her desire to assume. Eelying upon the charter to Lord Balti- 
more, upon the recognition of that charter made by Virginia in 1776, 

and upon the release then given bv Virginia to Maryland of all the 
34 



'266 

territory she then hekl as being within the h'mits called for by this 
charter; the proposition of Maryland says to Virginia, in effect, all 
this territory is mine under your own concession, but I now propose 
to you to investigate another claim I advance to a region held by you 
situated beyond the reputed limits which you formerly recognized as 
mine. 

Should Virginia accept such a proposition, even if the proposed in- 
vestigation might make it evident that the grant to Lord Baltimore 
was void ab initio; or that the present limits of the state of M9,ry- 
land, although once acquiesced in by Virginia, were not the true 
boundaries called for by that grant, but that such bounds would 
greatly curtail the present possessions of Maryland and enlarge those 
of Virginia; still she would derive no benefit from any such result. 
Whereas, should this result be different, Virginia would suffer loss, 
without the prospect of acquiring in any conceivable event. 

If Virginia had nev^er advanced a claim to any portion of the terri- 
tory now held by the state of Maryland; if Virginia had always ad- 
mitted that the limits under which Maryland now holds this territory 
were the true boundaries called for by the charter granted to Lord 
Baltimore; the proposition made by the state of Maryland might wear 
the appearance of more equality. But when it is a matter of noto- 
rious history that Virginia denied the validity of the grant to Lord 
Baltimore the moment the existence of that grant was known to her; 
that she afterwards denied the truth of the assertion that the bounda- 
ries of the domain now held by the state of Maryland were those 
called for by this grant, even supposing it to be valid; and that her 
subsequent recognition of the validity of the grant, and her release of 
right to any of the territory then asserted by Maryland to be within 
its limits, were mere gratuitous acts, done by Virginia in 1776 to pre- 
vent discord and to secure the cordial co-operation of all the British 
colonies in the great struggle for their independence, then about to be 
commenced, impartial justice will not probably regard this attempt of 
Maryland to erect a new controversy upon the gratuitous concessions 
of Virginia, made to secure peace and harmony, as either liberal or 
even fair. 

If Maryland believes that she desires no benefit from the conces- 
sions made to her by the constitution of Virginia, adopted in 1776, 
and is willing to rest her claim to the territory in question solely upon 
the charter granted to Lord Baltimore, in 1632, unsupported by these 
concessions, let her say so. She will find Virginia ever ready to meet 



267 

ner at any trial of the issue that would then be tendered, which issue 
would, of course, involve the original validity of this charter, and the 
question as to the true limits called for by it. Or if Maryland (being 
unwilling to put in question the validity of this charter, or the truth 
of the assertion that the limits under which she holds the territory 
she now possesses, are the true boundaries called for by it), chooses to 
fortify her title by relying upon the acts of Virginia; she ever willing 
to abide by her solemn acts, altho' they are merely gratuitous will 
meet Maryland upon the ground also, and will co-operate with her 
promptly, in delineating and marking the lines formerly recognized 
as the true limits called for by the charter referred to. But whatever 
Virginia may do in regard to it, she can never consider the proposition 
now made to her by Maryland, that Maryland shall continue to hold 
unquestioned all she now has under the gratuitious concessions of 
Virginia, and may be permitted, at the same time, to claim more of 
Virginia, in opposition to these concessions, as either equitable or just. 
Supposing it possible, however, that the state of Virginia may be dis- 
posed to accept this proposition made to her by the state of Maryland, 
unequal as it has been shewn to be, I will proceed to examine the 
only question which it is intended to present. As this presupposes 
the validity of the charter granted to Lord Baltimore, and that all the 
territory which the state of Maryland now holds is certainly included 
within the limits called for by that charter. I shall not touch either 
of these subjects at this time. But I will confine my inquiries to the 
single question, do the boundaries called for by this charter, include 
more territory than Maryland now holds, and so sustain the claim ad- 
vanced by her to the region described above .^ 

This question it is obvious can be determined only by a reference to 
the charter itself. 

This instrument may be found in the beginning of the first volume 
of the laws of Maryland, revised and collected under the authority of 
its legislature, by William Kitty. The original is in very bad latin, 
of which the fidelity of the English translation there given, is proba- 
bly open to as just criticisms as the purity of the latinity. 

The subject of its first grant is, "all that part of the peninsula or 
Chersonese lying in the parts of America, between the ocean on the 
East, and the bay of Chesapeake on the West, divided from the resi- 
due thereof, by a right line drawn from the West, from the promontory 
or headland called Watkins point, situated by the said bay beside the 
river of Wighco, to the great ocean on the Eastern side (in plaga 



268 

orientalis); and between that boundary on the South, unto that part 
of the estuary of Delaware on the North, which lies under the fortieth 
degree of North latitude from the equinoctial^ where New England is 
terminated." As the state of Maryland claims nothing in this quar- 
ter of Virginia beyond the boundary under which Mary- 
land and as the view about to be taken of this subject, pre- 
cludes any inquiry whether the boundary under which Maryland now 
holds is "the right" "line" here called for; it would be improper to 
make any other observation upon this part of the charter, than merely 
to say that it sets forth the reason why this grant was confined 
to the fortieth parallel of latitude. This parallel was the common 
boundary between New England and Virginia, as declared by the 
charter granted by King James the First, to the council of Plymouth, 
on the 3d of November, 1620. Therefore, beyond this parallel, the 
subsequent grant to Lord Baltimore could not legally be extended, as 
the grant itself here plainly declares. 

Having thus disposed ot the part of the Peninsula before -mentioned, 
situated on the Eastern side of Chesapeake bay, the charter next pro- 
ceeds to grant another territory, West and North of that bay; and to 
designate the boundaries of this also. In doing so, it uses terms 
the true of which is this : "And all that tract of land within the un- 
derwritten boundaries, viz : passing from the said estuary called Del- 
aware bay, in a right line, by the degree aforesaid, unto the true me- 
ridian of the first fountain of the Pattowmack; thence inclining to- 
wards the South (vergendo versus meridian) unto the further bank of 
the said river, and following it where its Westward side (plaga occi' 
dentalis) looks to the South, unto a certain place called Cinquack, 
situated beside the mouth of the said river, where it disembogues into 
the aforesaid bay of Chesapeake; and thence, by the shortest line, to the 
aforesaid promontory or place called Watkins point." 

The former part of this grant having plainly indicated the intersec- 
tion of the fortieth parallel of latitude with the estuary of Delaware, 
as the point at vphich the Eastern boundary thereby called for was to 
terminate; in describing the next or Northern boundary, it was indis- 
pensably necessary to begin at this point of intersection. Beginning 
there, if the course of this new boundary had been anywhere to the 
North of this parallel, it must have encroached upon the previous 
grant to New England; and if it had been to the South of that pa- 
rallel it would have left to Virginia a narrow and useless jib between 
this new boundary and the fortieth parallel. To avoid either of these 



269 

consequences, the course of the new boundary was required to be that 
of the parallel itself. 

Therefore it is that the grant, in describing the new boundary, re- 
quires it to run from the said estuary, called Delaware bay, in a " right 
line hy the degree aforesaid." Thus making the fortieth parallel of 
latitude (or the common boundary between Virginia and New Eng- 
land) the Northern boundary of the territory intended to be granted 
on the Western side of Chesapeake bay, as it had been already de- 
clared to be the Northern boundary of the part of the peninsula 
granted on the Eastern side of that bay. 

In this boundary Virginia has no interest whatever, except as to its 
extent. The line thus called for does not constitute a common boun- 
dary between Virginia and Maryland anywhere; it was the common 
boundary between Maryland and New England, and is the common 
boundary between Maryland and Pennsylvania. 

Therefore the only subject in which Virginia has the slightest inte- 
rest in regard to it is where it ought to terminate; and its termination 
is plainly required by the grant to be the point of intersection of the 
fortieth parallel of latitude with the true meridian of the first '' foun- 
tain of the river Pattowmack." There can be no doubt about this. 

But a question here presents itself, what ought to be considered as 
" the first fountain of the river Pattowmack," which is called for by 
this grant ? 

The context supplies so many other indicia by which the object de- 
noted by these terms may be easily discovered, that it would be a sub- 
ject of wonder how all of these should have been overlooked by the 
Maryland expositors of this instrument, if the argument upon which 
they seem to place their main reliance did not show the cause of this. 

But when these expositors refer to the 22d section of this charter to 
prove that if any doubt exists as to the intent of its provisions, Ma- 
ryland has the right to satisfy this doubt by bestowing upon the terms 
used such a construction as will give her the most land, it ceases to 
be a matter of surprise why the keen optics of some of these expositors 
have seen in the grant what is not there, and overlooked what is there. 
According to the rule of construction which seems to find most fa- 
vor in the eyes of such expositors, this 22d section (the like of which 
may be found in almost every modern royal grant of lands) holds out 
a bounty to astutia to mystify the meaning of words, in order to erect 
thereupon the jurisdiction of interest to decide in her own favor. 
From what code of ethics or of law such a notion is supposed to be 



270 

derived is not announced, but it is very certain that it finds no sup- 
port ratione scripta ocl non scripta, in either common justice or com- 
mon law. 

According to the opinion of the old crown lawyers of England, ex- 
pressed at a time when the prerogative was regarded with more favor 
there than prerogative is now regarded anywhere, a grant made by the 
king, at the suit of the grantee, was to be taken most beneficially for 
the crown. 

This opinion had some plausibility at least to support it. For as 
the sovereign was presumed to know nothing of the subject granted, 
except what the grantee had disclosed in his petition, this grantee, 
and not the king, was considered as the xqhX prof evens or propounder; 
and then, this rule was the mere application to a particular case of the 
just maxim of universal law in regard to the construction of all in- 
struments that verba fortius accipiunten contra prof erentem . 

For the purpose of excluding the operation of this harsh preroga- 
tive rule, a new clause was afterwards invented and introduced into 
the royal charters. The language of this clause affirmed that the 
grant was made " out of the special grace, certain knowledge, and 
from the mere motion of the king " himself. 

So contradicting directly, by words at least, the former presump- 
tion that the king had no other knowledge of the subject granted than 
what the grantee had disclosed to him in his application; and thus 
leaving the grant open to a more liberal construction than it would 
have received from the crown lawyers if the prerogative rule had been 
permitted to apply to it in full force. But as these words excluding 
the rule of prerogative did not establish any other certain rule for con- 
struing royal grants, at least in t-^rms, and as in such a state of things 
it was impossible to foresee what new rule of construction might be 
considered as legitimate by the subservient crown lawyers of that day, 
who were disposed to regard the kings of England as deriving their 
powers jure divino, or from some other source not better known ; a 
clause similar to the 22d section of this charter was invented and in- 
serted in most of the royal grants of property — a majori cantela 
merely. 

The sole object of both clauses was to apply the same rule of con- 
struction to royal grants, which was applicable to all other grants. 
This rule is well expressed in the maxim before quoted that verba 
fortius accipiuntin contra proferentem. This rule, however, being 
one of some strictness and vigor, is never referred to but as a last re- 



271 

sort; and can never be relied upon until all other rules of exposition 
fail. Nor was it permissible evnn in the da3's when prerogativti was 
at its meridian height, and whea charters were required to be ex- 
pounded most beneficially for the king, to clothe words with ambiguity 
in order to let in the prerogative rule of so construing them. But 
then, as now, all grants were required to be expounded "as the intent 
was at the time of the grant"; and to discover this intent the con- 
struction " must be made upon the entire deed, and not merely upon 
disjointed parts of it." Guided by these lights, intelligence and can- 
dor must first investigate the subject, not for the purpose of finding a 
doubt, but of clearing it of ambiguity, if this may be avoided; and 
it is only when siic/i judges cannot solve the uncertainty, that they 
are at liberty to refer to the rigorous rule as a lait resort, lU res magis 
valeat quam pereat. 

Then let an intelligent inquirer examine the terms us^d in this 
grant in a spirit of candor, honestly desirous to discover their signifi- 
cation. If, when he has found this, he is left in doubt whether the 
terms used were here employed in that sense, let him then search into 
each and every other part of the instrument, in the same spirit, to 
dispel his first doubt. And if such examinations do not give him 
reasonable assurance of the true intent and meaning of the grant, 
at the time it was made; then as a last expedient, let him adopt 
the rule given by the 22d section of this charter, and give to the 
still ambiguous terms such a construction as will be most benefi- 
cial to Maryland. But let him never forget that he is but an inter- 
preter and not the author, and that "justies in verbis nulla est am- 
biguitas, ibi, nulla expositio contra verba fienda est." More than 
this even strict law does not require, and more than this justice can- 
not grant. 

On prosecuting such an examination, the first question which natu- 
rally presents itself is, for what purpose were these ambiguous terms — 
"the first fountain of the river Pattowmack" — introduced into this 
grant ? The answer to this question is readily furnished by the in- 
strument itself; and in a way that no reasonable being can doubt of 
its truth. The immediate subject of that part of the grant wherein 
these words occur is the description of a line intended to be established 
as its Northern boundary. This line it had called for as a " right 
line." The point at which this right line was to begin, it had denoted 
as " the estuary called Delaware bay," meaning thereby the intersec- 
tion of the fortieth degree of latitude with that bav. For the reasons 



272 

before stated it had determined that the course and direction of the 
right line, beginning at this point, should be the course and direction 
of that parallel; which course and direction it had required by the 
words ordaining that it should run " by that degree." All that then 
remained to be done to complete the description of this Northern 
boundary of the grant was to establish a certain termination of the 
right line, the beginning and direction of which had been so given. 
This the grant effects, by declaring the right line shall be extended, 
from this beginning, in the given direction, "unto (usque ad) th^jtrue 
meridian of the first fountain of the river Pattowmack." It is thus 
made obvious that the purpose of introducing these words into this 
grant was to fix and determine the end of the boundary, the beginning 
and direction of which it had given immediately before. 

That this obvious purpose is also the sole purpose of introducing 
these words into the grant, will be very apparent, when it is observed 
that, this purpose being attained, no other mention is ever made of 
the meridian or fountain referred to; nor is any reference made to it 
afterwards in any part of this instrument. Indeed, so soon as a cer- 
tain termination of the Northern boundary is thus established, the 
next subject of the grant is its Western boundary. This is required 
to proceed "thence;" that is to say, from the point of intersection of 
the parallel and meridian aforesaid; and "inclining towards the 
South, is to extend unto the further bank of the said river" Potomac. 
It is plain, therefore, that the meridian referred to is not intended to 
designate this new Western boundary, but as merely furnishing the 
certain means by which the termination of the Northern boundary 
might be fixed and made known. 

The idea that this meridian is referred to as a new, and, of course, 
the Western boundary of the grant, seems to be inconsistent with it 
in many respects. If this charter had intended this meridian itself 
to be a boundary, after establishing the termination of the Northern 
boundary, by the intersection of the parallel with this meridian, it 
would probably have employed the same terms, mutatis mutandis^ 
which it had employed before as to the parallel, and would have said, 
thence "by the meridian aforesaid ;" or thence "in a right line;" or 
by some other form of expression it would have denoted a meridianal 
line as the boundary designed. Instead of this, however, the grant 
calls for a line merely "inclining (yergens) towards the South;" and 
this mere inclination from the parallel, not to, (ad) but "toiuards 
(versus) the South," it declares to be for the purpose of finding in 



273 

that quarter a natural object, "the river Pattowmack.** To satisfy 
such a call, it is indispensably necessary to proceed to this natural 
object, called for as being in the Southern quarter. Thither the 
Western boundary must go, whether the natural object called for be 
found East or West of the nieridianal line referred to, or even upon 
that meridian itself. 

In the latter case, however, the meridian would not be followed 
because it was the meridian, but because this meridianal line would 
then chance to coincide with the direct line going to the natural object 
called for. Nay, it is very conceivable, that after having fixed the 
termination of the Northern boundary, in proceeding from this point, 
to satisfy the next call of the grant for a natural object, the gran'tee 
would have been compelled either to have retraced his steps along the 
parallel, or to have gone on with it beyond the limit just established 
for such a termination. Or if any departure from the parallel was 
required to satisfy the demand of the grant that the new line should 
incline ''towards the South," an inclination towards the South of one 
single second of this degree, or even of a smaller fractional part of it 
than a second, would have sufficed to answer this purpose. 

A reference to the condition of things at the time this grant was 
made, in disclosing the probable reasons why the very terms found in 
it were employed, will well illustrate this last seeming paradox, and 
verify the truth of the several positions taken above, beyond all doubt, 
as is confidently believed. At that day, neither the parties to this 
grant, nor any other human being, knew where the source of the river 
Potomac was, or whether it would be found North or South of the 
fortieth degree of latitude. The existence of this river was known, 
and its general course and direction for about an hundred and forty 
miles from its mouth upwards was also known. So far (that is to say 
to its first falls) it had been ascended and explored. But beyond this, 
no white man had then ever been: and the whole country West of 
this point, either towards the North or South, was truly terra incog- 
nita. The probable inference from these few data was*tha,t this river 
Potomac crossed the fortieth degree of latitude. The great width of 
it, not only at its mouth, but at the highest point to which it had 
then been explored, justified a belief that it penetrated far into the 
country. If it did so, and the general direction of its course from its 
mouth to its first rapids was continued, it was certain that it must 
cross this parallel. But whether the river did continue its course in 

the same general direction, was then a matter of uncertainty; and 
35 



274 

being uncertain in describing the intended limits of the grant, it was 
proper so to provide, as that it should have a certain boundary, be the 
course of the river what it might. But how was this to be effected ? 

One thing was very clear, that as the Potomac was a large river it 
must have many fountains, and that from each of these it would be 
easy to draw one certain meridian, which being a meridian must in- 
tersect the parallel of forty wheresoever any of these fountains might 
be situated, although no one certain meridian could be drawn from 
the great river itself. Hence in running out the Northern boundary 
of the grant, and establishing a certain termination for this boun- 
dary, instead of calling for the river itself, or any of its fountains, 
neither of which might be on that line, the meridian of a fountain 
was designated as giving, necessarily, a certain termination of this 
boundary, let the course of the river, or the position of any of its 
fountains, be what it might in reference to the parallel. 

Having fixed the intersectional point of the parallel and meridian, 
as the certain termination of the Northern boundary in this then un- 
known region, the next desideratum was a certain Western boundary 
for the grant. 

The terminus ad quern oi the Northern boundary would necessarily 
be the terminus a quo of the new or Western boundary; but what 
should be the direction proper to be given to the line beginning at this 
point ? 

If this Western boundary should be made to run "by the meri- 
dian" to the fountain from which that meridian had been required to 
be drawn, and if that fountain should chance to exist Northward of 
the parallel of forty, as was then probable, every inch of the new line 
would have been within the territory of New England. But upon 
this territory, as has been seen, this charter was intended to avoid any 
encroachment. Therefore it was required that the new or Western 
boundary, in proceeding from its beginning on the parallel, should not 
run towards the North, but should incline towards " the South." If, 
however, the new Western boundary had been required to follow the 
meridian "towards the South," then it was very certain that to meet 
the fountain from which the meridian was directed to be drawn, should 
that fountain chance to exist Norward of this parallel, the meridian 
must pass around the whole globe. In the latter case, it would have 
been absurd; and in the former, plainly inconsistent with the mani- 
fest intent of the grant, to have required the direction of the meridian 



275 

to be that of the intended new or Western boundary. Therefore the, 
charter most cautiously abstained from any such requirement. 

But if the Western boundary departed from a meridianal line, the 
precise bearing of any object in this then unknown region, from the 
point on the parallel where it was intersected by this meridian, was 
neither then known or could be known; and if an arbitrary bearing 
from that point had been given to the new line by mere conjecture, to 
what point a line so directed might lead, or what might be the very 
probably absurd or inconvenient effects it might produce, was then a 
matter of equal uncertainty. Hence to avoid such possible and even 
probable consequences, the charter most wisely called for a known 
natural object as the termination of the new line, and by so determin- 
ing both the beginning and the end of this line thereby necessarily de- 
termine i^s true course and direction. Thus certain limits were estab- 
lished for the grant in this terra incognita, and without encroaching 
upon the territory North of the fortieth parallel, the certainty of which 
limits could not have been established by any other means than those 
used. 

To illustrate these several positions, let every conceivable case be 
referred to, and see how the grant would apply to each of them. The 
river Potomac either crossed the fortieth parallel, or it did not — but 
whichever of these categories was true, the fountains of the river, all, 
some, or one of them, must be found either Northward of this parallel 
or southward of it, or directly upon it. These embrace every condi- 
tion that can be imagined. Then let it be supposed, first, that the 
Potomac had been found to cross the fortieth parallel, and that some 
particular fountain, say the first, was found situated to the West of 
the point of intersection of the parallel and the river which crosses it, 
what Vk'ould have been the construction of the grant then ? The 
boundary would still have commenced at " the estuary called Dela- 
ware bay." 

[Four pages of the original manuscript are wanting.] 

or could be that fountain called for by this grant, as the first '' foun- 
tain of the river Potomac." But, granting this, (which cannot be 
proved,) it surely ought not be regarded as evidence of much scepti- 
cism to doubt the truth of the conclusion, which would infer the name 
of a river, from the fact of its having a nameless first fountain, whe- 
ther this fountain may be situated most to the West or East, North 
or South. Whatever " the horoscope " of this grant may indicate, its 



276 

words plainly shew, that the terms first fountaia of the river Poto- 
mac do not denote the most Western, but the nearest fountain of 
that river to the point of departure, and to the line whose termination 
the meridian of this fountain was intended to fix. If the view of this 
subject now being presented did not preclude it, this would be at once 
proved. But suppose this not to be so, and that some other of the 
many fountains which such a river as the Potomac must have, is de- 
noted by these terms; still, as has been before shewn, this first foun- 
tain, wherever it may be found, is not referred to as a boundary, but 
as the spot from which a meridianal line might be drawn, to intersect 
the fortieth parallel, and as to mark the termination of a boundary, 
the beginning and direction of which was already given. Having an- 
swered this purpose, both the meridian and the fountain from which 
it was required to proceed were functus officio. No other mention 
is made of either; but the next boundary is directed to proceed 
from the point of intersection made by the meridian and the parallel, 
not to the said fountain, but to the further bank of the said river. So 
that the question is not what or where is the fountain, but what and 
where is the river, here plainly contra-distinguished from this foun- 
tain. 

To say that this fountain is the river called for, is not only a sole- 
cism, which would confound the whole with one only of its many 
parts, and this the smallest, but is to assert a proposition absurd in 
itself and directly contradictory of other calls of this grant. It is 
absurd : because, by tracing the Potomac to this single fountain, and 
calling that fountain the river, unless there are two Potomacs, this 
fountain must be the only river of that name. This river would then 
have but one fountain. Now what rational being ever applied the 
relative Ji^^st to distinguish any object of which there was but one. 
The term last would designate such an object equally well. 

Such a construction is also plainly contradictory of the other calls 
of the grant it professes to expound; and this in many particulars — 

1. The object called for is a fountain. When this is left, it is a 
mere spot, from which only a single meridian can be drawn. During 
your short absence, however, this spot is magnified into a river, from 
which millions of meridians might be drawn, if required. 

2. The fountain called for being considered and necessarily so, as 
an object indefinitely small, a mere point, having position but no sig- 
nificant magnitude, it could not have sides or significant boundary; 
yet the river called for by this grant, is not only called for by the 



277 

name of a river, which must, have sides or banks, but the grant ex- 
pressly requires the boundary to proceed " unto its further bank." 
They who can split a hair between its West and Southwest sides 
may, perhaps, tell what is the "rurther" bank of such a fountain. 
In doing so, however, they will probably find it difficult to gain cre- 
dence in the opinion that such minute space (if spacti it may be called), 
was ever made the subject of description in any royal grant of millions 
of acres. 

3. This "further bank" of the river called for, is described in the 
grant itself, immediately after it is therein mentioned, as the '' West- 
ward side" plaga occidentalis. Nor it would not be possible to find 
the Westioard side of anything while going '-'towards the South," 
along a meridianal line//^om the North, that is from the fortieth par- 
allel of latitude. In such a direction you can expect to find a South- 
ern side only. 

4. Arrived at the further or Westward side of the river, the grant 
requires that this i. e. the further or Westward side, should be fol- 
lowed where it looks to the South, thereby plainly implying that the 
object described had two aspects, one to the North and the other to 
the South; and so shewing the impossibility that the most Western 
fountain of the river could be here intended. Besides this, however, 
it would be folly to expect that the Westward side of the Southern 
branch of any river or fountain (if a fountain could be said to have 
sides), could " look to the South." If it be a Southern branch, in 
its ascent it must look Southward^ therefore in its descent it must 
look Northivard. And any one who will take the trouble to examine 
a map of the country, will find that the Wappacomi^ or South branch 
of the Potomac (as it is now called), instead of looking "to the 
South," looks to the North from its source to its mouth. 

5. The grant promises, that by following this further or Westward 
' bank of the river called for, where this bank looks to the South, it 

will lead you "unto a certain place called Cinquack, situated beside 
the mouth of the said river, where it disembogues into the aforesaid 
bay of Chesapeake." It would be ridiculous, therefore, to suppose, 
that the side or bank so referred to could be that of a mere fountain 
in the Alleghany mountains, and impossible that the further or West- 
ern bank of the river itself, if that river be the Wappacomo or South 
branch of the Potomac, could ever lead to Cinquack. This place is 
well-known, and, indeed, admitted to be on Chesapeake bay, at the 
Southernmost of the two points made by the confluence of the river 



278 

Potomac with that bay. Tiie terms used in the grant indicate plainly, 
that you must not recross the river, but continue to follow the same 
side or bank at which you had already arrived, that is to say, the 
Westward side. If this is done, however, to reach Cinquack you 
must either recross the South branch, or to avoid doing so must cross 
the Potomac itself twice. 

These considerations, it is believed, must demonstrate that no foun- 
tain of the Wappacomo, or South branch of the river Potomac, can 
be the fountain called for in this grant as " the first fountain" of that 
river; and that the Wappacomo, or South branch itself, cannot by any 
possibility be the river intended by the grant as that unto the further 
bank of which it requires the boundary to proceed in passing trom the 
fortieth parallel of latitude. If this be so, there is an end put to this 
controversy. For as the claim advanced by the state of Maryland to 
th'^ territory in question rests solely upon the assumptions that the 
most Western fountain of the South branch of the Potomac is the 
fountain called for in the charter as "the first fountain" of the river 
Pottowraack, and that this South branch is the river next required 
thereby, when the error of both or of either of these assumptions is 
proved, the claim itself must be abandoned. 

But as it is at least possible that the state of Maryland, when ex- 
cluded from these positions, may be disposed to assume some other 
fountain and some other stream, within the territory of Virginia, as 
the true objects called for by the charter to Lord Baltimore, with a 
view of preventing this, if possible, I will extend this examination 
further. In doing so, I shall not endeavour to shew what is the first 
fountain of the ri^er Potomac, called for by this charter, or to desig- 
nate the particular point on the further or Westward bank of the 
river so called, which must be sought for and determined as the point 
required by this instrument. To do this I should be compelled to 
shew that Virginia is entitled to a much larger portion of the terri- 
tory now held by Maryland than Maryland has ever claimed of that 
held by Virginia; and this must not be done now. In the year 1776 
Virginia, '' when in her first love as a sister state," as it has pleased 
Maryland to say, voluntarily and gratuitously released to Maryland 
all light to any territory she then held as being within the limits of 
this charter. If Virginia had ever manifested any wish to avoid this 
release, or had ever made any boast of the motives which prompted 
her to give it, she might have merited such a taunt from her sister 
state. But although Virginia may feel the taunt of Maryland as 



279 

both undeserved and unkind, even that cannot provoke her to endea- 
vour to avoid any of the acis, however ungraciously they may be re- 
o-arded by those whom they were? ..ertainly intencfed to benefit. This 
release is in full force, and prechides any attempt on my part to shew 
that Virginia is noiu entitled to any of the possessions which Mary- 
land then held. But although it would be useless now to prove where 
the true boundary called for by this charter must be sought for and 
will be found, it will not be useless to shew why and where an errone- 
neous boundary was regarded by both parties as the true boundary. 
This therefore will now be attempted. 

Where a named river, or any other natural object, must be sought 
for, and may be found, is not, as has been before stated, matter of 
argument and deduction, but of fact; and the truth of facts can only 
be established by evidence. To evidence therefore I will refer : 

1. The particular region now called Virginia was discovered in 1607. 
The next year (1608) the justly celebrated Captain John Smith, who 
may properly be considered as the founder of the colony of Virginia, 
set out from Jamestown on an expedition to explore the then unknown 
Chesapeake bay. 

This he did, from its mouth to very near the head of that estuary. 
On his return from towards the head of the Chesapeake, while de- 
scending this bay along its Western side, he "fell (in) with the river 
Potomack" and ascended it "so high as we could wilh the bote" — 
that is to say to its first rapids, now found a little above the city of 
Washington. Some time after his return from this expedition, and 
after exploring the country in various other directions, meeting with 
a very serious accident. Captain Smith was compelled to return to 
England. While in England he published his "General Hist<M-ie of 
Virginia, from its first beginning, An : 1584 to this present, 1626." 
This work was accompanied with a map of the country. They were 
published together in London in 1629, and constituted the only au- 
thentic topographical description of Virginia extant in 1632 when the 
charter was o-ranted to Lord Baltimore. 

In the map which accompanied this history the extent of the region 
that had been then explored, either by the author himself or by any 
other white man, is distinctly marked and distinguished from the resi- 
due of the country, which is laid down merely from the relations 
given by the aborigiuees. 

This map, so ftir as it designates the positions of places which the 
author had visited himself, will be found singularly accurate, even at 



280 

this day, especially when the-means he possessed of attaining absolute 
certainty are considered. The names of the places mentioned in the 
charter to Lord Bartimore, and the orthography, show conclusively 
that this map of Smith's was the guide to which those concerned in 
this charter, as either grantor or grantee, must have had reference in 
describing the territory intended to be given and received, and when 
it is recollected that this was the only topographical description of 
Virginia then extant, it is certain that this map must have been their 
sole guide. 

An inspection of this map will shew that the river Potomac is there 
represented as a single stream, receiving no tributary above the point 
to which it had been actually explored, until it has ascended almost 
to its sources. 

It is there divided into two branches, by the confluence of which 
the river itself is formed. The more Southern of these two branclies 
is represented to proceed from the point of confluence in a direction 
nearly West; and of course could have had no Westward side as re- 
quired by the grant. Therefore, if either of them was considert-d as 
the river itself, it must have been the more Northern branch, which 
has a Westward side, that looks to the South; and if this side be re- 
garded as the bank of the river Potomac itself, it will lead to Cin- 
quack without re-crossing the river, according to the requirements of 
the charter. 

This circumstance, together with the very near approach of this 
Northern branch to the fortieth parallel, seems to indicate that if 
either of (these) branches -was then regarded as the river itself, it 
must be the Northern branch. It may be that neither of the two 
branches was regarded as the Potomac, but as being mere tributaries 
of this river formed by their confluence: but if it is insisted that the 
river must continue up one or the other of them, the more Northern 
branch alone will answer all the calls of the grant; and therefore, the 
name of the Potomac must be given to this Northern branch. 

When it is recollected that the delineation in this map of the Po- 
tomac, above its first falls, was not made from any personal observa- 
tion of the author of the map, or of any other white man, but from 
information derived from the aborigines; and that the Powhatans (the 
aboriginal inhabitants of this quarter) were ignorant of the country 
beyond the Blue Ridge, which was then held by a great nation, Mas- 
sawomecks, with whom the Powhatans were always at war; it will 
occur to every one, as very probable at least, that the river Potomac 



281 

represented in this map, was confined to tlie country Eastward of the 
Blue Ridge. 

This opinion will be confirmed by the fact that the distances given 
in this map from the falls of the Potomac to the point of confluence 
of its two branches, and from the falls to the mouth of the river at 
Cinquack, and to the Chesapeake bay near the mouth of the river, 
distinguished in the map as "Bolus river," (now the Patapsco,) shew 
very plainly that the confluence of the two branches was then believed 
to be much nearer to the falls than these were to the Chesapeake bay; 
and that this confluence was at a point above the falls not one-third 
of the distance between the falls and the mouth of the river, all of 
which latter distance had been then actually explored. If so, the 
more Northern of the two branches, which is represented as rising 
very near the fortieth parallel, must be the stream now called the 
Monocasy; and the other branch must be that descending from the 
Blue Ridge, now known as the Potomac itself, but which seems to 
have been formerly called the Quiriough. 

It is a circumstance worthy of observation also that when the moun- 
tains were first discovered, which was not until 1653, as is shewn by 
the most certain evidence; and when the passage of the Quinough or 
Potomac through these mountains was then ascertained, no doubt was 
entertained, either in Virginia, Maryland, or in England, that of the 
two streams by whose confluence the river Quinough or Potomac was 
there made, the Cohongoruton or North branch, and not the She- 
nando or South branch, ought to be considered as the Quinough or 
Potomac itself. Nor is this doubted by anybody, even in Maryland, 
to this day. So that if the confluence of the two nameless branches, 
represented in Smith's map, be even transferred from the junction of 
the Monocasy and Quinough to that of the Cohongoruton and She- 
nando, at what is now called Harpers Ferry, the same result will be 
exhibited, viz : that the Northern and not the Southern branch of 
the main river, was intended as the boundary of the grant; and this 
according to the concession of all the parties interested at that time. 

The effect of this evidence seems to be that when the grant to Lord 
Baltimore was made, in 1632, a nameless stream, then known to rise 
in the Northwestern quarter, and believed to do so very near the for- 
tieth degree of latitude, ofi'ered itself as leading necessarily to the first 
fountain of the great river, then called the Patowmeck, which would 
be approached in passing Westward from the estuary called Delaware 

bay, in a right line by the degree aforesaid, and therefore as the 
36 



282 

most convenient termination of the Northern boundary of this grant. 
But as the supposed near approach of this nameless stream to the 
fortieth parallel left it uncertain whether it rose to the North or to the 
South of the parallel, the meridian of the fountain and not the foun- 
tain itself, was called for as giving the teimination of this boundary. 
Not knowing in what precise direction from this point the river Pa- 
towmack might be found, but knowing that it would be found some- 
where South of the parallel, and that its general course upwards was 
from the Southeastward to the Northwestward quarter, in prescribing 
the next or Western boundary of the grant, the direction given in it, 
was to incline towards the South, and to proceed unto the further 
bank of the said river. This "further bank" would necessarily be 
the Southwestward bank of the river, which would, of course, look 
upwards to the North and downwards to the South. Therefore the 
grant truly described it as (plaga occidentalis) not West, but West- 
ward side; and directs this W^estward side to be followed where it 
looks to the South. "And, to render this description certain to every 
intent, the grant further directs that this Westward side of the river 
should be followed, where it looks to the South," unto a certain place 
called Cinquack, which place the grant describes as it is represented 
in Smith's map, as situated beside the mouth of the said river where 
it disembogues into the aforesaid bay of Chesapeake. This descrip- 
tion would indicate the stream now called the Monocasy as the name- 
less Northern stream delineated in Smith's map; and the most Eastern 
fountain of that stream as the first fountain called for in Lord Balti- 
more's grant. It would also indicate the point of confluence of the 
Monocasy and the other nameless Western stream, believed to be 
afterwards known as the Quinough, as the point on the river Patow- 
mack nearest to the intersection of the fortieth parallel with the me- 
ridian called for by this charter. And it would indicate a straight 
line drawn from this point of intersection to the further or Westward 
bank of the Patowmack at the junction of the Quinough and Mo- 
nocasy — the two tributaries by whose confluence the great Potomac 
was there first formed as the true Western boundary of this grant. 

More than twenty years after the date of this charter to Lord Bal- 
timore, when the country situated upon the Potomac above its first 
falls was explored Westwardly to the mountains, it was discovered 
that the stream now called the Monocasy was but a tributary of the 
principal river. To this last, the first discoverers, who came from the 
East, where the river formed by the confluence of these two streams 



28S 

was always known as the Potomac, gave the latter name, although 
the river above the confluence of the Monocasy was then callc;d the 
Quinough. If the first cliscovererSj instead of ascending the river to- 
wards its sources, had descended it towards its mouth, the probability 
is that the name of Quinough would have supplanted that of Poto- 
mac; but, as the reverse was the case, the name of the Potomac, 
which the river bore below the junction of its two tributaries, was 
continued to the principal of these above their confluence. It was 
many years, however, before the name of the Quinough became ut- 
terly extinct; for, as late as 1736, the river Potomac is oftentimes 
mentioned as the Quinough or Potomack. 

The name of the Potomac being thus applied to the river, even be- 
yond the Blue ridge, and the river still inclining, even there, towards 
the fortieth parallel, it was but natural to suppose that the first foun- 
tain of this river, then supposed to be that called for in the charter to 
Lord Baltimore, must be sought for by following the more Northern 
of its two tributaries. This region being then unsettled, the grant to 
Lord Baltimore was supposed to cover the territory West of the Mo- 
nocasy, and North of the river then called the Potomac. This errone- 
ous opinion was confirmed by the next piece of evidence to which I 
shall refer. 

2. In 1673, King Charles the Second, by his letters patent (con- 
taining clauses precisely similar to those in the charter to Lord Bal- 
timore, which are so much relied upon), granted unto Henry Earle, 
of Arlington, and Thomas Lord Culpeper, baron of Thorsway, "that 
entire tract, territory, region and dominion of land and water, com- 
monly called Virginia," not content with this sweeping grant. 



Tazewell Taylor to Gen'l Wise, enclosing papers prepared by Gov. 

Tazioell. 

Norfolk, April 18th, 1871. 

My Dear Sir : 

Mr. Loyall will hand you a manuscript of Gov. 

Tazewell, relative to the boundary between Virginia and Maryland, 
recently found by them among his papers, and which, altho' incom- 
plete and without date or signature, but in his own handwriting, the 
ladies have requested me to send you for examination, hoping it may 
be useful to you and associates in the boundary commission. 



284 

From the fact that a letter of Mr. McDonald's was with the papers, 
it is probable that it was prepared at his request. 
Please retain it as long as you wish and return it. 
Yours, very sincerely, 

TAZEWELL TAYLOR. 

Hon. H. A. Wise, Richmond. 



A. W. McDonald to Gov. Tazwell requeslmg an interview. 

NoEFOLK, Dec'r 27th, '59. 
Gov. L. W. Tazewell : 

If Gov'r Ta^jzewell's health is such that he would take interest 
in imparting his varied and valuable information relative to the (yet) 
unadjusted boundaries between Virginia and Maryland, the under- 
signed, (commissioner on behalf of Virginia), would deem it his duty, 
to seek an interview with, and avail himself of, the enlightened and 
matured counsels of G-ov'r Tazewell upon the important questions 
which present themselves as the basis upon which any adjustment of 
the differences between the two states must rest. 

If the desired interview will \\\ no wise discomfort Gov'r Tazewell, 
any hour of (to-day), he will indicate, for it shall be observed with 
pleasure, by his respectful and ob't s'v't, 

ANGUS w. McDonald. 



Gov. Floyd to Pres't Jackson. 

Virginia — Executive Department, 

May 14th, 1832. 

Sir: 

By a resolution of the general assembly of this commonwealth, 

I have been requested to procure from the government of Great Brit- 
ain, authentic copies of sundry papers now on file in the archives of 
that government, which will be useful to Virginia in a controversy 
about to rise with the state of Maryland relative to our Northern 
boundary. 



285 

By the terms of the resolution, I have been authorized to appoint 
an officer to collect such testimony as may be useful to us in the pro- 
per adjustment of that unpleasant claim. 

In conformity with the power vested iurae, I have appointed Charles 
James Faulkner, Esq., a commissioner on the part of Virginia to per- 
form that duty. 

The object of my addressing you this letter which will be handed 
to you by Mr, Faulkner, is to ascertain whether the records which are 
wanted can be procured through the agency and facilities of the Fed- 
eral government. If so, Mr. Faulkner will furnish your secretary of 
the department of state with all the necessary memoranda and refer- 
ences which will enable the American minister, at- the Court of St. 
James, to procure them without trouble or delay. 

With a hope that this request may not be considered burthensome 
to you, I have the honor to offer you 

My respectful salutation, 

JOHN FLOYD. 

His Excellency Andrew Jackson, president, &c. 



Echo. Livingston to John Floyd. 

DEPARTMENT OF STATE, 

Washington, 18th May, 1832. 

To His ExcellencT/, John Floyd, 

Governor of Virginia : 

Sir: 

The president has referred to me your letter of the 14th May, 
1832, with directions to point out what in my opinion would be the 
most advisable mode of obtaining for the state of Virginia copies of 
the papers relative to its Northern boundary, from the colonial office 
in Great Britain. 

From the information given to me by Mr. Faulkner, it appears that 
all those papers cannot be so specifically designated as to enable the 
officer in whose custody they are to find and give copies of them. If 
they could be designated, nothing more would be necessary than to 
transmit from this department a descriptive list of them to our charge 



286 

d'affairs at London, with directions to ask from that government that 
copies should be furnished. This would, I have no doubt, be promptly 
complied with. 

I also understand from Mr. Faulkner, that although all the papers 
cannot be sufficiently described, yet many of them can. Whether the 
production of these last might lead to such a knowledge of the others 
as would enable you to designate them alsOj you best will be enabled 
to determine. If this were probable, at two or more successive opera- 
tions, all might be procured that the state requires. 

If you do not think this probable, the better course would be to 
send on an agent to London, who, under the direction of Mr. Vail, 
might acquire from the office having the custody of the records such 
information as would be necessary to attain your object. Not that I 
believe he would himself have liberty to examine the records but that 
every facility would be afforded to his research by the direction of the 
government. 

In either of these cases, I am directed by the president to say, that 
the necessary directions will be given to Mr. Vail by this department 
to aid, by his official application, the attainment of the documents 
required by the state of Virginia; and if we should send out a public 
ship about the time your agent intends to go (if you send one), that 
a passage will be afforded him. But it is necessary to add, that there 
are no funds at the disposal of the executive out of which any of the 
expenses attending this business can be defrayed. 

I have the honor to be, with great respect, 

Your most obedient servant, 

EDW. LIVINGSTON. 



The following paper was copied by Hon. I, D, Jones, one of the 
commissioners of Maryland, and exhibited in the deposition of John 
Cullen : 

Mr. Jones' caption is as follows : 

"Commission from the Levy Court of Summerset to John S. Handy, 
John Cullen and Henry Thomas, of Summerset co., in the state of 
Maryland, to lay off so much of Smiths island as lies within the 
body of Summerset county aforesaid into a separate and additional 



287 

Election District," before 1st August, 1835. Commission dated 8th 
April, 1835. Return dated 16th June, 1835 : 

"In pursuance of the said order we have viewed, laid out and re- 
turn as follows for said election district, to-wit : Beginning on the 
East side of said island at a place well known by the name of ' Drum 
point'; thence Westerly cross to the bay to a hammock called Sassa- 
fras, lying on the bay shore; thence by and with the bay up to Kedges 
straits; thence by and with the sound to ' Drum point' to the begin- 
ning. And that we at the same time have elected the Methodist 
meeting-house as the most suitable and convenient place for holding 
the elections in said district. 

In witness, &c., June 16th, 1835. 

"JOHN S. HANDY. [Seal.] 
"JOHN CULLEN. [Seal.] 
"HENRY THOMAS. [Seal.]" 

Liber G. H., No. 8, folio 35 and 36. 



Extract from Records of Summerset Co., E. S., Va. — Liber 31. A., 

folio 730. 

Deed. — John Evans, of Accocack Co., in the colony of Virginia, 
from Henry Smith and Anne, his wife, of Summerset county, in the 
province of Maryland ; renter grant of Lord Baltimore, of 2d Sep'tr, 
1682, tract of land called Pitcraft, bounded, &c., as per certificate of 
7th June, 1679 — parcel of land taken out of the said 1,000 acres — 
200 acres, beginning at a marked pine at North end of Westernmost 
side of a ridge of land called Dogwood ridge, and running Southerly 
the length of 200 acres, with an East course for containing 200 

acres. 

Note by Gov. Wise. — Several other deeds from same rtcords, which 
will probably identify divisional line on Smiths island. 



288 



Earliest Record of Summerset county, llth day of Decemher A. D., 

1665 to 1668. 

Anne Toft, of Accomack, recites on Manoaken, granted in the 

year 1665, in the year 1667, 19th day of June, granted laud 
of his and Randall Revell's land — the double purchase or Araroza to 
Hannah and Catheru Revels. 

. This indenture, made this eighth day of August, io the fifth year of 
the reign of our sovereign Lord and Lady William and Mary, by the 
grace of God of England, Scotland, France and Ireland, King and 
Queen, defenders of the faith, &c.; and in the year of our Lord Grod 
one thousand, six hundred and ninety-three, between Henry Smith, 
of the county of Somerset, province of Maryland, of the one part, and 
John Tyler, of the same count}?- and province afors'd, planter, on the 
other part, witnesseth : that whereas Sr William Berkely, sub-gov- 
erneur and capt-gen'll of Virginia, by instructions from the king's 
most excellent ma'ties directed to him and the counsel of state to 
grant patents and to assign proportions of land to all adventurers and 
planters. Now, know yee that the said Sr William Berkely, sub gov- 
erneur and capt-gen'rell of Virginia, &c., do, with the consent of the 
counsel of state accordingly give and grant unto s'd Henry Smith one 
thousand acres of land situate, lying and being in Accomack county, 
being part of an island beginning where the East and West line from 
Smith's island doth intersect and bound on the Northern part 
therewith, running Southerly to the farthest extent of the said 
island, bound on the Eastern and Western sides by parts of Chesa- 
peake bay and sunken marshes, and the s'd land being due unto the 
s'd Henry Smith, by and for the transportation of twenty servants 
into this colony, whose names are on the records mentioned under- 
neath, to have and to hold with his due share of all mines and mine- 
rals therein contained, with all rights and privileges as hawking, fish- 
ing, and fowling; with all wood, waters, and privileges; w^ith all pro- 
fits, commodities, and hereditaments to the s'd land belonging to him, 
the s'd Henry Smith, his heirs and assigns forever, as by the said pa- 
tent dated in Anno 1667, in the nineteenth year of the reign of King 
Charles the 2d over England, &c. And this indenture further wit- 
nesseth, the Charles absolute lord and proprietary of the provinces of 
Maryland, and Avalon, lord barrow of Baltimore, &c. To all per- 
sons to whom these presents shall come greeting, in our Lord ever- 



289 

lasting, know yee that whereas Col. William Stevens, of Somerset 
county, in our s'd province of Maryland, had due unto him one thou- 
sand acres of land within our said province, part of a warrant for 
eleven hundred acres granted him the third of June, 1C79, and had laid 
out for him a parcell of land called Pitcraft, lying in the county afor'd, 
all whose right, title and interest of, in and to for'sd parcel of land the 
s'd Wm. Stevens hath assigned and sett over unto Henry Smith, of the 
said county, as appears upon record, and upon same conditions and 
terms as are expressed in ye conditions of plantation. Wee doe hereby 
grant unto him, the said Henry Smith, all that tract or parcell of 
land called Pitscraft, situate, lying and being on the East side of 
Cheswpeak bay and island of broken woodland and marshes between 
the said bay and an endraught of water commonly called the sound, 
bounded as followeth : Beginning at a marked fork white oak, stand- 
ing on a small hamock of woods, at the mouth of a thoroughfare 
called Smith's thoroughfare, on the bay side, thence for the Northern 
bounds, bounded by the South side of the said thoroughfare. Run- 
ning first Northeast into the said thoroughfare to the North end of a 
narrow long island in the thoroughfare called Cow Ridge, bounded by 
the said thoroughfare Easterly to the mouth thereof, entering into the 
aforesaid sound; thence for the Eastern bounds, bounded down the 
side of the said sound, by the sd. sound to the divisional line drawn 
betwixt Maryland and Virginia; thence for the Southern bounds, 
bounded by the sd. divisional line, running West to the fors'd bay 
side; and for Western bounds, bounded by the sd. bay, running up 
the side of sd. bay Northerly, and bounded thereby to the first boun- 
der, containing and laid out according to the certificate of survey 
thereof taken and returned into the land office at the city of St. 
Maries, bearing date the 7th day of June, one thousand six hundred 
and seventy-nine. And there remaining upon record for one thousand 
acres more or less. Together with all the rights, profitts, benefitts and 
privileges thereunto belonging, roy'l mines excepted. To have and to 
hold unto him, the said Henry Smith, his heirs and assigns for ever. 
Now this indenture witnesseth, that the above sd. Henry Smith, for 
and in consideration of nine thousand pounds of tobacco to him in 
hand, paid by the within named John Tyler before the ensealing and 
delivery hereof, whereof and wherewith the said Henry Smith doth 
acknowledge himself to be fully and wholly contented and satisfied 
and paid, and doth of and for every part and parcell thereof, acquitt, 
exonerate and discharge the said John Tyler, his heirs, ex'ers and 
37 



290 

adm'rs, for ever. And by these presents hath given, granted, bar- 
gained, sold and enfeoffed and confirmed, and by these presents do 
fully and absolutely give, grant, bargain, sell, enfeoff and confirm unto 
the said John Tyler and to his heirs and assigns for ever, a part or 
parcell of land taken out of the afors'd two thousand acres of land 
granted as afors'd, viz: By Sr. Wm. Berkely and the Lord Baltimore, 
as by the several patents, now amply and fully doth appear being 
bounded as followeth: Beginning at the North point of the home 
hamock, running North, Northeast along the creek side three hundred 
and twenty perches for length, to a pine; and from thence one hundred 
perches for breadth, East-Southeast to a marked post; from thence 
South-Southwest three hundred and twenty perches to the main creek, 
and to the first bounder, containing and laid out for two hundred 
acres, being part thereof in Virginia and part in Maryland, taken out 
of the two fors'd tracts, containing two thousand acres as afors'd, 
with all and singular the houses, yards, gardens, orchards, meadows, 
marshes, fordings, pastures, ways, easements, fishing or fishing places, 
with all the appurtenances and emoluments thereunto belonging or in 
any wise appertaining. To have and to hold the same, with all and 
singular the premises hereby mentioned to be bargained and sold, and 
every one of them, unto him, the said John Tyler, and to his heirs 
and assigns, forever, without any mortgage, redemption, use or limi- 
tation, to recall, alter, to change or resume the same. The rents and 
tributes which from hence forward shall become due and payable to 
the lord or lords of the fee or fees always excepted and foreprized. 
And the said Henry Smith, for himself, his heirs, ex't'rs and adm'rs, 
do forever, freely and absolutely, acquit and discharge the same of 
and from all and all manner of former and other bargains, grants, 
sales, forfeitures, jointures, dowers, surrenders, and of and from all 
other titles, claims and demands whatsoever. And that he, the said 
Henry Smith, is, and standeth seized, at the time of the delivery of 
these presents, of the aforesaid land and premises, with the appurte- 
nances thereunto belonging, of a firm, sure, good and indefeasable 
estate of inheritance, and in fee simple, and that he hath a good right, 
full power and lawful authority to grant, bargain and sell the same to 
him, the said John Tyler, and to his heirs and assigns, forever. And 
the said Henry Smith doth further covenant, grant and decree, to and 
with the said John Tyler, his heirs and assigns, that he, the said 
Henry Smith, his heirs, exe't'rs and adm'rs, shall, and will, at any 
time hereafter, for and during the space of seven years next ensuing, 



291 

and upon the reasonable request, and only at the cost and charges in 
the law, of hira the said John Tyler, make, do, acknowledge, execute 
and suffer, or cause to be made, done, acknowledged and suffered, all 
and every such and other further reasonable act and acts, thing and 
things, devise and devises, whatever in law necessary to be done for 
the better settling and more sure making of all and singular the before 
hereby mentioned demised lands and premises, unto hira, the said 
John Tyler, and to his heirs and assigns for ever. As the said John 
Tyler, or his heirs and assigns, or his other counsel learned in the law 
shall be reasonably desired, advisf^d and required. 

In confirmation and full assurance of the tru^h above written, the 
sd. Henry Smith hath hereunto sett his hand and seal, giving deed, 
and hath with fall and peacable possession by livery of seizure of the 
above sd. land and premises, as witness the day and year above sd, 

HEN. SMITH. [Sealed.] 

Signed, sealed arfti delivered in sight 
and presence of us. 

SAM'L ALEXANDER. 
J. GRAY. 

In memorandum that this day (viz.) the Sth day of August, in the 
5th year of their ma'ties reign, Wm. and Mary over England, &c., 
Anno Domini 1693. Before Thomas Newbold and Jno. King, gents., 
two of their ma'ties justices of the peace for the county of Somerset, 
in the province of Maryland, came the within named Henry Smith, 
in his proper person, and did acknowledge the within mentioned land 
containing two hundred acres, part thereof lying in Virginia and part 
in Maryland, to be right of him, the within named Jno. Tyler and his 
heirs forever, and for this acknowledgement quit claim and agreement 
the said Jno. hath given him, the said Henry, nine thousand pounds 
of tobacco. 

THS. NEWBOLD, 
JNO. KING. 

Coram nobis. 

Entered the 17th of August, 1693, p'r 

JNO. WEST, Cir cr. 



292 

I, Levin L. Waters, clerk of the circuit court for Somerset county, 
do hereby certify that the foregoing is truly copied from liber L (folios 
114 and 115), one of the record books now being and remaining in the 
office of the clerk of said court. 

In testimony whereof, I hereto set my hand and affix the seal of 
said court, this seventeienth day of May, Anno Domini eigh- 
[Seal.] teen hundred and seventy-two. 

LEVIN L. WATERS, Cl'k. 

[U. S. stamp.] 

The foregoing is a true copy from a copy of the record. 



True copy of a papei^ found in the possession of Alexander Tyler, 

on Smith's Island. 

Extract from a deed to John Tyler and Henry Smith, dated 8th 
day of August, sixteen hundred and ninety-three: 

Beginning at the West point of the Horse hammock, running 
North, Northeast along the creek side three hundred and seventy- 
perches for length to a pine, and from thence one hundred perches for 
breadth. East, Southeast to a marked post; from thence South, South- 
west three hundred and twenty perches to the main creek, to the first 
bounder, containing and laid out for two hundred acres, being part 
thereof in Virginia, and part in Maryland, taken out ot the two afr'd 
tracts containing two thousand acres aforesaid, with all and singular 
the houses, yards, gardens, orchards, meadows, marshes, feeding, pas- 
tures, waj's, — , fishing or fishing pawns, with all the appurtenances 
and emoluments thereunto belonging or in anywise appertaining. 

In testimony that the foregoing is a true extract from the records 

now remaining in the office of the clerk of Somerset county, I have 

hereto set my hand and affixed the seal of my office, this 4th day of 

Dec'r, 1823. 

GEO. HANDY, Cl'k. 

N. B. — The handwriting of the paper is known to Mr. Jones to be 
that of Geo. Handy. 



293 

This indeiiture, made this 30th day of August, in the year one 
thousand eight hundred and twenty-eight, between Elisha Crocket 
and his wife of Accomack county, and state of Virginia, of the one 
part, and Richard Eavins and Wm. Eavins, of the same place, of the 
other part, witnesseth : that the said Elisha Crocket and Caty, his 
wife, in consideration of the sum of three hundred and seventy-five 
dollars, lawful money of the UniLed States, to them in hand paid by 
the said Richard Eavins and Wm. Eavins, at and before the enseal- 
ing and delivery of these presents (the receipt whereof is hereby ac- 
knowledged), have bargained and sold, and by these presents do and 
each of them doth bargain and sell unto the said Richard Eavins, his 
heirs, and assigns for ever, a certain tract or parcel of land situate ly- 
ing and being in the county af'd, containing seven hundred and fifty 
— be the same more or less. And bounded as follows, to-wit, bounded 
North on the Tyler ditch, on the South waters of the Tangier's island, 
on the West by the Chesapeake bay, on the East by the waters Tangier's 
sound. To have and to hold the said tract or parcel of land with the 
tenement, hereditaments, all and singular other the premises herein- 
before mentioned, or intended to be bargained and sold and every part 
and parcel thereof, with every of their rights, members and appurte- 
nances unto the said Richard Eavins and Wm Eavins, his heirs, and 
assigns forever to and for the only proper use and behoof of him, the 
said Richard Eavins and Wm. Eavins, his heirs and assigns for- 
ever. And the said Elisha Crocket and Caty — , his wife, for them- 
selves and their heirs, the said land with all and singular, the premi- 
ses and appurtenances before mentioned unto the said Richard Eavins 
and Wm. Eavins, his heirs and assigns, free from the claim or claims 
of them, the said Elisha Crocket and Caty, his wife, or either of them, 
their or either of their heirs and of all and every other person or per- 
sons whatsoever shall, will and do warrant and forever defend by these 
presents. 

In witness whereof, the said Elisha Crocket and Caty, his wife, have 
hereunto set their hands and seals the day and year first above written. 

ELISHA CROCKET. [Seal.] 

her 
CATY X CROCKET. [Seal.] 
mark. 

Signed, sealed and delivered in the presence of interlined previous 
to being signed. 



294 

Accomack county, sc: 

We, John F. Kiley and William Riley, justices of the peace 
in the county aforesaid, in the state of Virginia, do hereby certify that 
Elisha Crockett, a party to a certain deed bearing date on the 30th 
day of August, 1828, and hereto annexed, personally appeared before 
us in our county aforesaid and acknowledged the same to be his act 
and deed, and desired us to certify the acknowledgment to the clerk 
of the County court of Accomack in order that the said deed may be 
recorded. 

Given under our hands and seals, this 30th day of August, 1828. 

JOHN F. RILEY. [Seal] 
WILLIAM RILEY. [Seal ] 

Accomack county, sc : 

We, John F. Riley and William Riley, justices of the peace in 
the county aforesaid, in the state of Virginia, do hereby certify that 
Caty Crocket, the wife of Elisha Crocket, parties to a certain deed 
bearing date on the 30th day of August, 1828, and hereuLto annexed, 
personally appeared before us in our county aforesaid, and being ex- 
amined by us privily and apart from her husband, and having the deed 
aforesaid fully explained to her, she, the said Caty Crocket, acknow- 
ledged the same to be her act and deed, and declared that she had 
willingly signed, sealed and delivered the same, and that she wished 
not to retract it. 

Given under our hands and seals, this 30th day of August, 1828. 

JOHN F. RILEY. [Seal.] 
WILLIAM RILEY. [Seal.] 

This deed from Elisha Crocket and Caty his wife to Richard and 
William Evans, with the certificates of acknowledgement thereof, was 
recorded by Thomas R. Joynes, clerk of Accomack County court, in 
his office, and admitted to record on the 12th day of August, 1829. 

Teste, 

THOS. R. JOYNES, Cl'k. 



295 



Copy of a Deed from Jacob Sparroiu to Teahle Evans, found on 
Smith's Island, in the Possession of . 

This deed, made this twenty-fourth day of September, in the year 
of our Lord one thousand eight hundred and forty-one, between Jacob 
Sparrow, of the county of Gloucester, in the state of Virginia, <>f the 
one part, and Teacke Evans, of the county of Accomack, in the state 
aforesaid, of the other part, witnesseth : That the said Jacob Spar- 
row, for and in consideration of the sum of two hundred and twenty- 
five dollars, of good and lawful money of the commonwealth of Vir- 
ginia, to him in hand paid by the said Teacke Evans before the seal- 
ing and delivery of these presents, the receipt whereof is hereby 
acknowledged, hath granted, bargained and sold, and by these pre- 
sents doth bargain, grant and sell unto the said Teacke Evans, his 
heirs and assigns forever, a certain tract or parcel of marsh land lying, 
situate and being on Smiths island, in the county and state aforesaid, 
and containing by estimation two hundred acres, be the same more or 
less, and bounded as follows, to- wit: On the North by the lands of 
Richard Evans, and on the South by a line commencing at the head 
of Clay cove, about two hundred yards above Josiah Sparrow's house, 
and running an Easterly course to the head of Peach Orchard cove, 
the said line having been run by the parties to this deed as the di- 
viding line between the lands hereby conveyed to the aforesaid Teacke 
Evans and the tract retained by tiie said Jacob Sparrow. To have and 
to hold the aforesaid tract or parcel of land, with all and singular the 
appurtenances thereunto belonging or in anywise appertaining, unto 
him, the said Teackle Evans, and his heirs and assigns forever, and to 
and for the only proper use and behoof of him, the said Teackle 
Evans, and his heirs and assigns forever. And the said Jacob Spar- 
row, for himself and his heirs, doth hereby covenant and agree to and 
with the said Teackle Evans, that he will forever warrant and defend 
the title to the aforesaid tract or parcel of land free and clear from 
the claim or claims of all and every person or persons now or hereafter 
laying claim to the same, or any part thereof. 

In testimony whereof, the said Jacob Sparrow hath hereunto set 
his hand and affixed his seal, the day and year as first above written. 

JACOB SPARROW. [Seal.] 

Signed, sealed and delivered in the p^eaence of — the, words "of the 
other part" first inserted. 



296 

Accomack county — sc. : 

We, Nathaniel Topping and John 0. Wise, justices of the peace in 
the county aforesaid, in the state of Virginia, do hereby certify that 
Jacob Sparrow, a party to a certain deed bearing date of the twenty- 
fourth day of September, 1841, and liereunto annexed, personally ap- 
peared before us in our county aforesaid, and acknowledged the same 
to be his act and deed, and desired us to certify the said acknowledg- 
ment to the clerk of the county court of Acjomack, in order that the 
said deed may be recorded. 

Given under our hands and seals this 24Lh day of September, 1841. 

NATH'L TOPPING. [Seal] 
JOHN C. WISE. [Seal.] 



Accomack county court clerk's office, Jan'y 28th, 1842 : 

This deed from Jacob Sparrow to Teackle Evans, with the certifi- 
cate of acknowledgment thereof thereto annexed, was recorded by me 
in the clerk's office this day and admitted to record. 

Teste : 

J. J. AIL WORTH, 
For THOS. R. JOYNES, Cl'k. 



38 



298 



5ss 
-4$ 



8 
1^ 



% 



d 






4) m 

S (D 



= S § 
•—pa 



!2q OQ ■< 



4) - 



^ 




^ 


O 










0) H-l 


t« 




C 
CIS 






o 








oj 


eS 






O 




o 


^' 




fo 




•fi 


c 




,Q 


^ 


O 


o 


I?', 


• 


o 


O 


s 


O 


d 


^ 




o 

o 


a) 


o 


CO 


o 

O 




-*J 




>> 


OJ 


a 


!z;<^ 


i3Q 


Piz; 


O 



<v o a 






c3 c^^ 

^•^ £ a 

c ^ -^ .5 o 
o -; — ^ (i< 

^ p; ;- « 

_ _ • " • C CS . 






o j5 C J* 



o 

C3 






^ < 



OOOOCOOOOOOO 
OOOOO'OOOOOOO 
O O^-* 0_0_CO_10 UD tH -^ 1-- I-- 

co'c^f co'i-Ti-T i-T 



-* -^^ -^< CO (M ^ CO 
CO CO CO to CO CO CD ■ 
CO CO CO CO CO CO CO 
lO r-1,-1— '.-lrH.-lrH 

^ c<ro~o''c<rc<rc<rjs". 

o u:) 



oooooooo 
oooooooo 

<MCOCOl.O-*OOCD 



H^ 02 H^ O ^ H^ <1 ~ 



M 



t^ 05 C5 
CD CO CO 
CO CO CO 



OOO 



'e 







- Oi-S ^ 



. rt 



5g -3 M § r^ M « o 
-c c c S 9 5 a "a 

c3 o a w 1-^ ffi <i o 



_ . 1 (M ■'tl Tt* 1.0 O -* 
0<1C5OOOOt— !,-( 
,— (TjiCOCOCOCDCDCO 



0<M<MCO-tl'-ivOh- 

(NCOCOCOCOCOCOCO 

(>1 <N 



u 



m 



i 



•^ -fi ?„ 

(V C CIS 

U £ -2 

g^ 8 

.Em P 



o — 

o "3 



-S 2 _« =• 7 
.„ .^ .^ "-■ w , 

. a, 0^ o ■ 
mm^ 1-5 1 






03 






n 


bl 




C! 




f^ 


o 


o 


0) 


w 


•73 



aj >, oj 









o o;?; <J<5 



o 1^ S 



2 o 



299 



o 


In 




C 








fl) 


o 





<1^ 






a2'5 



^fe 



5^.2 



ChO 



P © rw 5 b 



^;i2 o 



diO 



P..2 

m.2 

v > 



^ . o a 

fl, C3 C 3 

S 0) « a 






S O 



— & 









oo o 

i-O o o 


o •* 

O CO 


o 
o 


o ■^ 
o to 


oo 

ooo 


^ CO 


oo 
oo 

OTJI 


oo 
o o 

O F-l 




o o 

o o 

lO I— 1 


oooo 
o o o o 

O C<l CO <N 


oo 

CO 00 


CO rt o 
I— 1 


co 




<N 




a 


T-H 






(M 


<N -* 




c"s<r 

1— ( T— 1 


creo' 

1— 1 1—1 


CO 
I-H 


O CD 


-TfTco 


g?2 
IS 


oo"oo 

CD CO 

T-l 1—1 


1- — 

CD 


t~ 


oTo" 

I- 00 

CO CO 


CO 00 CC OO 
CD CO CO CD 


CO 
00 . 
CO - 


<N r-i :: 


I— 1 t-H 


oT 


crTo" 


1^ 


%^ 


'*"■<*<" 


o"_ 

CO ~ 


o 


io"o 


cf o'im'cd" 

(N <N rH 


g-j::" 




O 


•< 


^ 6 

ay 
<50 




o 


- < 




« 


O i2. 


Octo. 
April 
Sept. 
April 


a.: 
< 






^ :i *" 
1-5 C <t5 






0.2 









o ^ 
en CI 



- O cJ K 



: .9 



..5 » 



•-^ - - - - 
m . ^ m 

OX! 00=1 

00 i-ji-sO, 



^O 




■-si^oo?: 



CO 00 

•-( 00 
CO CO 



10 00 -^ •* iM 

O "O t-l >-i "* 



•>* O »-c CO 
lO CO CO CO 



CO CO 
CO CO 



CO t-- 
CO I— 

CO CO 



^^!* 



CO O 

01 O 



300 



'A < 



S f^ 



.ii 


<A 


T) 


M 


(3 


" ' 


cS 


4) 




SI 




bl 


<ii 


rt 


A 


«< 



:: 5 w 



.2 ra .--•;- .S 



5 •?= -d S 



GO 



^'O 






P3lz; 



CO® 

^ -^ ^ 
o a C 

C^ 0/ 0) 
<U . O 



Ph 



.i 


-a 


rC 




o 


'm 


;z; 


M 






r^ a -= ' 



o o 4; 



." a< o tn 
OcqO 



o iC 

CO 1^ 



O "5 O 
O «0 lO 
10 O <M 



A 


OT3 




r3 d 


60 




l8 


_0 rt 


".2 




^^ 


ta c 


§ =■ 


^1 

to -^ 


^■S 


J2 « 


, 


<1W 


pq 


CO 





C3 


t^ 


05 









E-i 


t- 


<5 


00 


di 







0" 


H 


^_i 


H 




< 


s. 


« 


-si 



1-1 00 rH . 



r- P r= 



,-( Oi r^ t-l 



M 



Ph. 
<5" 



O Oh 

o<i 



.-I C5 



o Ch- 



CO uO 

[4 cCio" 



w 




(M iffl to CO 00 

eo CO CO -* I— I 



O .* 

CO -rH 



O iffl 

o «o 



301 



o 



8 



r« 



6 





O 01 












t- 




t>> rt 




i a 




J 




•:i ,a 




S M 




o b 




oj 1 






•73 «« 




a o 




3 *^ 




o . a 




Ki -a .s 




- a o 


(H* 


^? ^ 


El 


o S =« 


3 


O (U * 


o 




t-5 




o a 4J 




O CJO 




>>>.:2 




t- -r t« 




<u in "o 




zi M H ni 






•^3 




•« -O" 2 








^^S^S-a" -2 




^ fcti rt a «s 




S 3 O 3 [g 




t3 ® ^ O ■<< 




o « a 




;2; Ph o 


<M . 


<» t^ o 


° s 


I- -^ <x> 


A s 


^ oc 


O o 




^<1 






^ ^ « 


H 






C» O TH 


!■- l^ 00 


>— ' ,_( r-l ,_, 


f^ 


1-H 


^ 


O CO ^ 


H 


° ^ 


Eh 


M >, d ^ 


<1 



s 1 g 


p4 




w 




H 




iz; 


' ' ' 


H 




Eh 




<J 


r 


Ch 


m 


o 


IS 

§ i Is 


<1 




!z; 




<U CS . . 




M ^ » H-s -p 




O t> Jtft, ? 




eg is&^^s 


w 


lO •^ ?D t— 


00 -^ lo o 


o 


i-< (O to 


<1 




Oi 





302 






1lk< 



P3 






aj • CO 

s« « 

cQ ''3 ■■;:; 

(DO 

^ n "^ 
B Si lo 

TO ^ -^ 

Sec 

t^ "a ■— 



C3 !- 



s-g s 



Cj CO CO 

(u ^ 5 
oi 2 a 



.-- o •is ^ 



Ah ..2 .. 



73 5j aj ' 

C* .- O 

"" .^ o 

05 t. o 

£, =« o 



^ -►^ -^ Jll 

o S =- " 

■^ as B 










>.'« 


■~ 




0) 


§ 


_o' 


_o 





TS 
§ 


^ 







e3 

> 


fe 


C 


73 


G 


^ 

H 


rt 




^ 




a> 




c 


'-' 






H 


>- 


0) 



.ii;02 









O ^ D 



00 
o o 












00 


10 





CO 


10 


-* 10 



(M <M 

o to 



M 







05 o 

CO '"ti 



T^ CO 



CO lO 
CO CO 



^ 


c3 




V 


^ 




5 






c 



S 




„ 


c 




«J 


4) 




-i^-id 







c 




S 



M 




w 


>-, 




0^ 




Ph 


-rt 




1'' 


rj 




^ 


u 

rt 


S 


'rt 


ftO 


c 


„ 


0) 


ci 


a> 


c 






o 13 ^ 



1^ TT 

Mh5 



o o 
o o 



o —> 

O JO 



0<5 



^(^ 



Q = 



ali 



303 



Memoranda of Coloniale and Commonw'th Grants. 

Date. 

1662. 
Mar. 12, i^^ Bockatenock and Sebly's bay are high up the seaside 
coast on Sinarepuxent bay (on the Potomack.) 

1663. 
Oct. 2. Robert Pitt— book 5—4000 acres. 

1664. 
June and 

Sept., Col. E. Scarbrough and John Wallop, 2,400. 
1670, Oct. 6— William Buttingham, East of Pocomoke, 450. 

1678, Ap'l 4— Thos, Welbourne, Fox island, N. of Watts island. 

1679, Ap'l 30— Col. S. Littleton, on the Forehead neck, N. side of 
Kings creek, at Pocomoke river. 

1680, Ap'l 20— Maj. Gen'l John Custis, Cobham's island, in Poco- 
moke river. 

1680, Octo. 2 — John Tankard, 2,000 acres between Gingoteag, Acco- 
comson and Pocomoke. 

1699, Octo. 26 — John Ciirter, Foxes North island. 

1700, Nov. 27 — William Britingham, 996, beginning at Kings, alias 
Pitts creek, 3^^ on the divisional line between Virginia and Ma- 
ryland. 

1703, Oct. 23— Francis Mackennie, Arcadia Welbourne, Dan'l of St. 

Thom's Jenifer and John West, 3,804 on Six island. ^W B. S. 

H., near Nanticoke sound. 
1727, June 16 — John Marshall. To a marked oak, being one of the 

^W° division trees hetiueen Va. and Md. 
1787, May 4 — Sacker Nelson, Northerly and Easterly on Pocomoke 

sound, sou, the thoroughfare W. on the Tangier sound. 
1791, Octo. 31 — Richard Evans, on Queens ridge, beginning at a 

marsh near Tangier sound. 

Where is Old Barn island, Piney island, Rich hammock ? 
1672, Octo. 7 — John Robins, bounded Northward B:^^ by the divi- 
sional line between Va. and Md. 
1680, Octo. 2 — Capt. Dan'l Jenifer 2,500 acres between Crooked 

creek and Pocomoke river on the North, Messongo creek — Gingo- 

teague alias Jingoteage alias Chincoteague. 



304 

1664, April— Col. E. Scarbroiigh, 4,150 

June— Col. Wm. Waters, 1,350 

August — John Wallop alias Wardlow, 3,050 

8,550 acres. 

1682, May 8—1686 Nov. 3— Lt. Col. Dan'l Jenifer 3,890 on Assa- 
teague, William Kendall 2,725 acres iST. E. end of Chincoteague, 
including a piney hammock called Piney island. 

1694, Ap'l 20— Maj. John Bobbins 2,725 S. W. end of Chincoteague, 
including a little island of marsh. 

1695, Ap'l 21 — Capt. John Custis, N. end Chincoteague. 
1700, Ap'l 24 — Hill Drummond 183 acres on Pope's island. 

1672, Ap'l 24— William Whittington 5,800 acres, all Chincoteague 
island. 

1691, Ap'l 28 — Major John Kobins 1,500 acres, being an island called 
Chincoteague island, and parted from the Main neck of Chinco- 
teague, Great Mattapony, or Swanseacute, and Chincoteague creek 
and neck on the main. 

1666, Nov. 9— Dan'l Selby 600 acres, and one to Bishop, on Bocka- 
tenock creek, on Selbys bay. 

1666, Nov. 9— Edward Smith 700, and John Peck 400, both N. of 
Daniel Selby's. 

1671, Feb'y 12— Daniel Jenifer and Anne (Toft), his wife, 16,300, 
bounded East by Stokely's branch, and shows where Chincoteague 
creek on the main was. 

1674, Ap'l 9 — John Wallop 450 on the Swanseacute or Mattapony. 

1674, Ap'l 9— Sam'l Taylor, 700 on Freshwater branch on Great Mat- 
tapony, by some called Swanseacute. 

1675, Ap'l— Col. S. Littleton 1,000. 

1672, Mar. 26 — Miles Gray 400 acres bounded Northward on a South- 
ern Freshwater branch of Great Mattapony called Swanseacutes. 

1672, Feb'y 12 — Daniel Jenifer 5,000 acres called Chingoteague, 
3,000 of it granted to Col. E. Scarbrough 20th June, 1664, and 
2,000 acres of same lying N. W. of the 3,000 above. 

1672, Oct. 3 — Capt. John West 1,000 acres on Chincoteague creek. 

1672, Oct. 9 — John Wallop 650 acres on Gingoteagne alias Chingo- 
teague. 

1672, Oct. 7— ^Thos, Nickion at Chincoteague creek, adjoining John 
Wallop, 



305 

1672, Oct, 7 — See back John Robbins, bounded Northward by the 
divisional line between Virginia and Maryland. 

1673, May 27— Thos. Mosier 1100 acres in the upper part of the 
county, in the woods near Gingotake. 



Letters and portions of letters without date, address, or signature, 
in the handwriting of Gov. Tazewell, relating to the boundary ques- 
tion. 

C. E. SNODGRASS. 

[This, to the mark on third page, appears to be a fragment of a 
letter from Gov. Tazwell to the Governor of Virginia, touching his 
authority to negotiate upon the boundary question.] 

In acknowledging the receipt of your excellency's letter of the 15th 
inst., justice to myself requires that I should promptly correct a mis- 
apprehension which you seem to entertain, as to the doubt expressed 
in my last, in reference to the extent of your authority to enter into 
any new negotiation upon the subject of the boundaries of our two 
states. In expressing this doubt, I certainly had no idea of question- 
ing your authority for giving the invitation to do so as you suppose. 
But merely to call your attention to the ftict, that even if this invi- 
tation should be accepted by those who alone had power to accept it, 
the purposed negotiation might be prevented, or its consummation 
procrastinated, by a defect which I thought it possible might have 
escaped the notice of your excellency. You have assured me that I 
was wrong in this supposition, however, and it is not for m^ to pro- 
nounce, at this time, upon the sufficiency of your arguments to shew 
that your own construction of your own powers ought to be regarded 
as correct. Having said this, perhaps there is no necessity for adding 
more, especially as your excellency has informed me, "that unless 
provision" has been made in our act of March 5th, 1833, for the very 
special and possibly unnecessary umpirage prescribed by your 

resolutions of 1831, in case of the disagreement of the commission, 
you have no authority to continue negotiation upon the subject further. 
The act referred to contains no such provisions certainly; it will be 
long, I hope, before the State of Virginia will ever consent to submit 
an undefined proposition concerning her territory to any arbiter nomi- 



306 

Dated to her, and with this declaration of your excellency, it would 
be useless to say more upon this subject, than to repeat the assurance 
I have formerly given you, that I will lay before the next general 
assembly of Virginia the whole correspondence between us, and sub- 
mit to them the propriety of acceding to this peremptory sene qua 
non. 

In conclusion, I will take the liberty of saying to your excellency, 
that when I availed myself of the occasion presented by your first 
letter, while announcing to you my own want of authority to conclude 
anything in regard to its subject that might be obligatory upon Vir- 
ginia to propose a frank, informal correspondence between us in re- 
ference to that matter, I was actuated by no other wish than an ardent 
desire to become the instrument of facilitating the termination of a 
controversy which, I believe, then would not be continued if its pre- 
cise object was once correctly understood. To effect this, obvious con- 
siderations seemed to me to suggest the avoidance of any reference to 
past proceedings that had been employed in characterizing the conduct 
of one of the high parties to the controversy, especially as the State 
of Maryland seemed to concur in this opinion by repealing the reso- 
lutions con 

Your excellency thinks differently however, and while tendering me 
the late resolutions of your legislature repealing those adopted in 1833, 
you refer specially to the proceedings which accompanied these resolu- 
tions to shew that the opinion of that body which adopted these pro- 
ceeding concurred with yours in this particular. I will forbear any 
other remark upon this than to say that I regret it. 

[From this point to the end of the 4th page is in reference to bounty 
lands, and has nothing to do with the boundary question.] 

I have the satisfaction to inform you that betore the 1st day of Sep- 
tember now last past, all the claims for military bounty land which 
had been exhibited to the executive were disposed of finally by that 
body. I have been since informed officially, through the secretary of 
the U. S., that the warrants filed exceed the appropriation of 650,000 
acres made by Congress in the act of March 3d, 1835, by 94,599 acres. 

This excess, as the register informs me, does not comprehend other al- 
lowances made by the executive of this commonwealth, upon which no 
warrants have yet been granted by the register, because none shewn 
to be properly authorized to receive such warrants have applied to him 
for the same. Since the 1st day of Septeaiber last, a few additional 
claims for military bounty land have been presented; upon none of 



307 

these^ however, have we yet proceeded to act; nor, under the circum- 
stances stated, shall I feel myself at liberty to act hereafter unless di- 
rected to do so by some resolution of yours. 

Your attention is therefore again invited to this subject. There is 
no reason to doubt that most of the officers of the government of the 
U. S. view this subject in the same light in which I have here pre- 
sented it; but being mere executive officers, bound to carry existing 
laws^ into execution, each at his own peril, legislative enactments are 
requisite to protect these officers, and to cause the laws of the land to 
conform more exactly to the objects of the constitution than they now 
do probably. 

Your letter of the 31st ult'o, the receipt of which I have now the 
honor to acknowledge, contains some remarks to which I am reluc- 
tantly constrained to reply, notwithstanding your declaration that 
there is no necessity for any further correspondence between us on the 
subject to which it relates. 

You say that I have declined making any exposition of the Vir- 
ginia act. of March 5th, 1833. I am not aware that any such exposi- 
tion has been sought by your excellency in any of the various com- 
munications with which I have been favored by you; nor that any 
doubt has ever been entertained by you as to the intent and meanincr 
of that act. It is true, that in your letter of the 15th ult'o, you in- 
formed me that unless it had made provision for the umpirage pro- 
posed in case of disagreement of the commissioners, you had no 
authority to continue negotiation upon the subject, or to appoint 
to meet those appointed by Virginia. But even if this 
information was intended to intimate any doubt on your part as to 
the character of the act in this respect, this doubt must have been re- 
moved by the prompt exposition I then gave you, in stating that the 
act contained no such provision certainly. A most careful re-exami- 
nation of all our correspondence does not now furnish me with an in- 
timation of any other date stated by your excellency. Nay, so far 
from containing the expression of any wish, for any explanation on 
my part, your letter gave me distinctly to understand that you did not 
consider me as empowered to make any authorized explanation on the 
subject. 

Your excellency corrects an error into which you suppose I have 
fallen, in considering your submission of the proposals contained in 
the rt'solutions adopted by your State at the December session, 1831 
as a peremptory sine qua non; and you inform me that your sole 



308 

object in referring to these proposals was but to shew the extent of 
your powers. Now so far as Virginia is concerned in the matter, it is 
of little consequence, for what reason this preliminary to negotiation 
was dictated to her. In any the acceptance of terms presented 

constituted a condition precedent to any negotiation. If Virginia 
had ever expressed an earnest desire to Maryland to close and 
finally adjust a question pending between them by amicable negotia- 
tion, Virginia certainly would have no cause to complain 6f Maryland 
for annexing to her acceptance of such a proposition, any condition 
she might think proper. But when it is not Virginia, but Maryland, 
that gives this invitation, the annexation of any condition as prelimi- 
nary to that which she has invited, is a novelty at least, whether this 
condition be prescribed by Maryland directly, or results from the 
nature of the powers with which she has clothed her agent. 

The peculiar character of the condition thus sought to be prescribed 
we also claim some notice. Virginia has in vain called upon Maryland 
to state to her precisely what it is she claims, and upon what founda- 
tioD her claim rests; (••'•except in the most general t'^rms.) Without 
answering these questions, Maryland says to Virginia, I propose to 
submit this yet unknown question, involving unknown interests, to 
the umpirage of an unknown arbiter, who is to be governed by no 
prescribed rules, and may be guided by any unknown evidence and 
unknown argument hereafter to be offered. ^ 

[This appears to be a letter from Governor Tazewell to the Governor 
of Maryland, most probably. It is without date or signature.] 

Your excellency supposes such a proposition to be countenanced by 
precedents to be found in the Diplomatic History of the United States. 
If this history, or that of any other State, either ancient or modern, 
furnishes any example like it, I am uninformed certainly where it may 

be found. 

You describe the proposition also as equal and reciprocal. But 
when the situation of the two high parties is considered, it would be 
difdcult to shew in what the reciprocity consists; and as to its equality, 
so would be a reference to mere chance. It is not usual, however, for 
states either to propose or to accept such an umpire. Something more 
than equality and reciprocity (if that could be found here), is gener- 
ally considered desirable in the establishment of any forum. And 
Virginia would pay but little regard to her own character for either 
*It is uncertaio at what place these words were intended to be inserted. 



309 

integrity or intelligence, if she was prepared to submit any and every 
claim that might be preferred against her to an unknown umpirage, 
presented to her by the claimant before the precise nature of the claim 
has been announced, or its character defined. 

Your excellency expresses, and I doubt not feels a desire to see this 
controversy terminated, by any f\iir, reciprocal and feasible plan which 
Virginia may propose. But it will at once occur to you that Virginia 
is precluded from claiming anything of Maryland, and until Virginia 
is informed of the precise nature of the claim advanced against her, 
and of the proofs and arguments to sustain" it, she can form no just 
idea of the nature of the demand, and is so incapacitated from sug- 
gesting any plan for its adjustment. 

[Though written on detached scraps of papt-r, pages 9 and 10 are 
evidently a continuation of the foregoing letter.] 

If Maryland is content to rest her claim to the territory in question 
upon the recognition of her right made by Virginia in 1776, Virginia 
is willing to abide by that recognition still. But she never can con- 
sent that Maryland may retain what she possesses in virtue of this 
recognition, and then ask for more under a title adverse to it, and in 
opposition to its admitted signification. It is with Maryland to select 
the ground upon which she chooses to rest her claim, and Virginia — 
will controvert. But she cannot in reason trace its foundation to two 
contradictory sources, claiming so ranch under the concession of Vir- 
ginia and so much more against that recognition. One or the other 
of these sources of her title Maryland must abandon, if they be in 
conflict with each other; and that they are in conflict will be obvious 
to all when it is seen that the terms used in the concession made by 
Virginia in 1776 refer expressly to the territory then possessed by 
Maryland which had been theretofore claimed by Virginia, and not to 
territory then held by Virginia and occupied and claimed by Virgi- 
nia as her own, while the grant made to Lo^d Baltimore in 1633 
could not by any possibility have referred to his antecedent possessions 
or to the claims of Virginia afterwards covered by that grant itself. 

If the grant to Lord Baltimore covers the territory possessed by 
Maryland in 1776 and more, the recognition then made by Virginia 
is of no avail to Maryland, but the better foundation of her claim 
would be this grant. 

If the concession made by Virginia in 1776 comprehends more than 
the grant to Lord Baltimore ever covered, then the better title of Ma- 
ryland would be derived from this recognition ; and if both the grant 



310 

and recognition cover the same region throughout, it is now of no con- 
sequence to either Maryland or Virginia to which of these sources the 
title of the former is traced, as in either case the result will be the 
same. It would now save much discussion which may very probably 
prove to be unnecessary, if Maryland would make her election under 
which source of title she thought proper to rely. Bat as this is not 
done, both grounds must be examined. 

So I will begin with the grant to Lord Baltimore as the elder, if 
not the better title. 

The claim asserted by the state of Maryland to the territory in 
question she derives from a grant made by King Charles the First, 
to Cecilius Calvert, Lord Baltimore. This grant bears date June 
20th, in the 8th year of that prince's reign, 1633. Within the boun- 
daries called for by it, the territory in question is said by Maryland to 
be included. It is conceded on all sides that whatever may be the 
true limits required by this grant, the whole comprehended by them 
is but a small part and parcel of a much larger region, previously 
granted by King James the First, on the 23d of May, 1609, to a com- 
pany incorporated under the name of the treasurer and company of 
adventurers and planters of the city of London, for the first colony of 
Virginia. Therefore, unless the limits of the grant to Lord Balti- 
more includes the territory in question (now claimed by the state of 
Maryland, she must admit that territory to belong to Virginia, as 
being comprehended confessedly within the bounds of this her more 
ancient charter. In this view of the subject two questions would natu- 
rally present themselves. Did the grant then made to Lord Balti- 
more really include the territory in question ? Did the king of Great 
Britian enjoy the legitimate power to carve any portion of the territory 
granted to Lord Baltimore in 1633, out of the greater territory which 
had been previously granted to the colony of Virginia in 1609, by a 
former sovereign of that empire, and if such power existed ? If the 
first of these questions was now open for discussion, it might be af- 
firmed confidently, perhaps, that no king of England, or of Great 
Britian since the enaction of magna charta, had possessed in virtue 
of his mere prerogative, the legitimate authority to grant to one, any 
freehold or franchise which the crown had previously granted to another. 

Such an assertion would apply with great force to a case like this, 
where a body of adventurers had been tempted by the promise of the 
rights and privileges given to them by the provisions of a liberal char- 
ter, to embark in the hazardous undertaking of founding a colony in 



311 

a new world, when, by the establishment of which colony, they were as- 
sured by this charter, that they, and their descendants, should then 
have and enjoy all the liberties, franchises and immunities of British 
subjects abiding and born within the limits of England. In that case 
also it might be contended with equal truth, that the grant made to 
Lord Baltimore in 1633, was confined to a portion of America, then 
uncultivated, and occupied by savages, having no knowledge of the 
divine being, in partitus America et barbaris nullane divini 

) such a grant could not possibly have been designed to 
comprehend all the territory include'd within its bounds at the date of 
this grant. A portion of this territory had been that already settled, 
because it was then occupied by British subjects who derived their 
title to the same, from the then existing government of the colony of 
Virginia, within whose acknowledged limits it then was. 

Our ancient records shew that so early as February 1631 the isle of 
Kent, now called Kent island in the state of Maryland, was not only 
settled and occupied by the colonists of Virginia, but that the in- 
habitants of that plantation then enjoyed and exercised the privilege 
of sending a burgess to the grand assembly of Virginia; and our 
statute book contains several acts of this assembly passed both before 
and after the date of the grant to Lord Baltimore, whereby the trade 
of the isle of Kent was regulated. But these questions it is readily 
admitted are not now open to discussion. They were settled very 
many years since by the king himself, upon grounds approved by his 
council, the judges; and although, to the colony of Virginia, the de- 
termination of the sovereign was then unsatisfactory, and became the 
subject of great murmuring and complaint; yet Virginia had no 
means in her power which might have been employed consistently 
with her loyalty to oppose the decision. She therefore reluctantly 
yielded at first to the force of this authority, by which the determi- 
nation was made, but afterwards, in 1776, the very act by which she 
assumed sovereignty and independence, she voluntarily ceded, released 
and forever confirmed to the people of Maryland, all the rights of 
property, jurisdiction and government, and all other rights whatsoever, 
which had been claimed by Virginia in the territory contained within 
this charter, granted to Lord Baltimore, whereby Maryland was erected 
into a British colony. The commonwealth of Virginia feels no wish 
to impair the obligation of this concession, then voluntarily, tho' gra- 
tuitously, made by her, so far as she is concerned. 

Virginia is still willing that the state of Maryland should retain 



312 

everything which is therein granted or renounced. But, while thus 
ready to relinquish again, if necessary, the right, which she might pro- 
perly assert, to any portion of the territory ever occupied, held or un- 
til lately claimed by Maryland, under the grant to Lord Baltimore, 
Virginia cannot regard it as either generous or just that the state of 
Maryland, to secure a title to what it possesses, should rely upon the 
voluntar}'^ and gratuitous concessions made by Virginia in 1776, and 
then, to enlarge these possessions, should assert a title unconnected 
with this concession, and certainly, to its meaning, as well understood 
by both parties at the time the concession was made. 

[Apparently a portion of the charter to Lord Baltimore.] 

Totam illam partem peninsulce sive chersonise janieutes en partibus 
America inter oceanum ex oriente et serium de Chesapeake ab occe- 
dente a residuo ejusdem per rectam lineara a promontorio seve capite 
tena oceanio Watkins point juxta sinum predritum prope fluvium de 
Wighco scituato ab occidente usque ad magnum oceanum in plago 
orientati duclam devesam et inter melam ellam a meridie usque ad 
partem ellam estuarie de Delaware a,b aqulone quoe subjacet quadra- 
gesimo gradree latitudinis septentionatis ad equenoctiate ube termu- 
natis Nove Anglia totuonque illiuv tena tractiem infer melas sub- 
scriptas transciends a decto estuario vocato Delaware bay recter linea 
per gradum predictum usque ad verium meridianum primi fontis 
flumeous de Patowmack demde vergendo versus meridium ulteriorem 
dulc flu minis repam et ceru sequendo qua plago occidentatis 
meudeoualem spectal usque a locum quendam appelladum Cinquack 
prope equisdum fluminis astium scetuatum ubi in proefatum senum 
de Chesapeake evoluter ae inde per liniam usque ad predictum 

promontowum sive locum vocatum Watkins point. 

[Translation of page 16.] 

All that part of the peninsula or chersonese lying in the parts of 
America, between the ocean on the East and the bay of Chesapeake 
on the West, divided from the residue of the same by a right line 
drawn from the promontory or headland called Watkins point, 
situate near the bay aforesaid, near the river of Wighco, on the 
West, unto the Great ocean on the East; and between that boun- 
dary on the South, unto that part of the estuary of Delaware on 
the North, which lieth under the 40th degree of latitude North 



313 

of the equinoctial, where New England is terminated; and all the 
tract of that land within the metes underwritten (to-wit,) passing 
from said estuary, called Delaware, in a right line, by the degree afore- 
said unto the true meridian of the first fountain of Patowmack; 
thence verging towards the South to the further bank of the said 
river, and following it by the Western edge, where that looks to (or 
inclines to) the South, unto a certain place, called Cinquack, situated 
near the mouth of the same river, where it disembogues into the afore- 
said bay of Chesapeake, and thence by the shortest line into the afore- 
said promontory or place called Watkins point. 

Cecelius Calvert, Baron of Baltimore, in Ireland, June 20th, 8th 
year of Charles I., 16 — . 



Faulkner to Wise — Relating to his Beport on Boundary, in 1831-'32. 

Martinsburg, May 1st, 1871. 
Eon. Henry A. Wise. 

Dear Sir — I have just returned home after an absence of two weeks, 
and received your favor the 20th inst. 

On the 20th March, 1832, a resolution was adopted by the general 
assembly of Virginia, requesting the governor to obtain certain docu- 
ments and testimony relating to boundaries of the States of Maryland 
and Virginia. 

See Session Acts, 1831-32, page 308. In pursuance of power con- 
ferred by this resolution, I was appointed by the elder Grov. Floyd to 
procure the documents and testimony there referred to. 

I completed my report early in November of that year, and trans- 
mitted it to Gov. Floyd, who laid it before the general assembly in his 
message of December, 1832. 

You will find my report embraced in document No. 1, accompanying 
that message. You will also find immediately preceding my report 
the views of Maryland upon the same subject. 

My report was accompanyed by many interesting historical docu- 
ments, which are particularly referred to in it. I deposited all these 
documents with the secretary of the commonwealth and librarian, and 
I know they were preserved for some years afterwards; but I learn by 
some publications, which I have seen in the Richmond papers, that 
40 



314^ 

they are no longer to be found in the public library of the State. I 
have no recollection of ever having had the benefit of any suggestions 
of Gov. Tazewell in the preparation of that report. 

I remember some years after that report was prepared, and when 
Mr. Tazewell was governor ot the State, he invited me to dine with 
with him, and after dinner he read to me an elaborate and very in- 
teresting essay jvhich he had prepared, claiming the Monocacy river 
as the true dividing line between Maryland and Virginia. 

His views were forcible and ingenious, but they left no further im- 
pression on my mind than an admiration of the rich resources of his 
mind. 

I am, 

Very truly and sincerely yr. friend, 

CHS. J. FAULKNER. 



^'^'e-33 



